On November 2, 2023, legislative decree No. 152 of October 18, 2023, implementing Directive (EU) 2021/1883 on the Blue Card – the permit that allows highly skilled non-European workers to work within the European Union – was published in the Official Gazette. The decree will enter into force on November 17, 2023.
The European Blue Card (Directive 2009/50/CE)
The blue card came into force with Directive 2009/50/EC, which established the rules for the entry of highly skilled workers from third countries. The directive included the obligation to meet certain requirements, including having a minimum wage in line with European Union standards.
However, it was felt that the 2009 directive had not sufficiently increased the entry of highly skilled non-European personnel. Therefore, the new 2021 reform aimed to more effectively attract talent and thus address both demographic challenges and labor and skills shortages in key sectors of the Union’s economy by creating a more attractive regime for highly skilled workers from outside the Union.
The new Directive (UE) 2021/1883
The new Directive (EU) 2021/1883 aimed to facilitate the conditions of entry and residence of third-country nationals intending to perform highly skilled work, repealing the previous Directive 2009/50/EC.
The object of the new directive concerns:
- the conditions of entry and residence, for periods exceeding 3 months in the European Union, and the rights of third-country nationals intending to engage in highly qualified employment and their family members;
- the conditions of entry and residence and rights of nationals and their family members referred to above, in member states other than the member state that first granted an EU Blue Card.
Criteria for admission
Under the new directive, third-country nationals are eligible for the Blue Card procedure if they meet the following general requirements:
- present a valid work contract or, if provided for by national law, a binding job offer to perform highly qualified work lasting at least 6 months in the member state concerned;
- present, for unregulated professions, documents evidencing higher professional qualifications relevant to the work to be performed;
- present, for regulated professions, documents proving compliance with the requirements defined by national law for the practice of the profession;
- present a valid travel document and, if required, a valid visa or, where applicable, a valid residence permit;
- prove that they have health insurance covering all risks against which nationals of the member state concerned are normally covered, for periods when they do not have insurance coverage related to or under the employment contract.
In addition to the above requirements, the directive sets that the amount of gross annual remuneration must not be less than the remuneration threshold set and published for this purpose by the relevant member state.
This remuneration shall be set by the Member State concerned, after consultation with the social partners in accordance with national practices, and shall be at least 1.0 times, but not more than 1.6 times, the average gross annual remuneration in the Member State concerned.
Notwithstanding this, the directive defines that:
- for employment in occupations particularly in need of third-country national workers and belonging to major groups 1 and 2 of the ISCO classification, and
- for third-country nationals who have obtained a higher education qualification no more than three years prior to applying for an EU Blue Card, a member state may apply a lower salary threshold corresponding to at least 80 percent of the salary threshold set by that member state, provided that such lower threshold is not less than 1.0 times the average gross annual salary in the member state concerned.
Procedures and rights
The new directive then defines the applicable procedures, specifically how and by whom Blue Card applications are to be submitted, the notification timelines for approving the application, and how the application is to be rejected.
In addition, the new directive regulates the limits of labor market access for Blue Card holders and the principle of equal treatment with nationals of the issuing member state. Furthermore, it defines the procedures applicable to family members and obtaining long-term resident status for Blue Card holders, effectively referring back to Directive 2003/109/EC, with some exceptions.
Finally, the directive deals with mobility between member states, particularly with regard to short-term mobility-about the possibility of Blue Card holders to engage in the same activities in other EU countries, for a maximum of 90 days out of 180 in line with the Schengen acquis-and long-term mobility in another member state. In the latter case, it is specified that where the EU Blue Card holder moves to a second member state and his family was already established in the first member state, family members have the right to accompany or join him/her.
Deadline for national implementation
The deadline for member states to transpose the directive had been set for November 18, 2023, the date by which each member state will have to bring into force the laws, regulations and administrative provisions necessary to comply with the directive.
Implementation in Italy
With the publication in the Official Gazette of legislative decree No. 152 of October 18, 2023, Italy officially implemented Directive (EU) 2021/1883.
The new decree, effective November 17 2023, made some important changes to the Italian Consolidated Immigration Act (“Testo Unico Immigrazione – TUI”).
New requirements for the foreign workers
Foreign workers engaged in an unregulated profession must possess, alternatively:
- a third-level higher education qualification attesting the completion of a higher education course of at least three years’ duration or a post-secondary level professional qualification of at least three years’ duration or corresponding at least to level 6 of the National Qualifications Framework referred to in the Decree of the Ministry of Labor and Social Policy of January 8, 2018;
- a higher professional qualification attested by at least 5 years of professional experience relevant to the profession or sector specified in the Italian job offer;
- only with regards to executives and specialists in the field of information and communication technologies: a higher professional qualification attested by at least 3 years of relevant professional experience acquired within the 7 years preceding the submission of the blue card application (Art. 27-quater, paragraph 1, lett. a, c, d TUI).
Regarding the specific characteristics of documents supporting one’s educational and/or professional background, clarifications from the authorities are expected.
In addition, the possibility of applying for the Blue Card is also extended to those foreigners who:
- benefit from international protection (Art. 27-quater, paragraph 3, lett. b TUI);
- are family members of European citizens who have exercised or are exercising their right to free movement in accordance with Directive 2004/38/CE (Art. 27-quater, comma 3, lett. d TUI repealed by decree 152-23);
- reside as seasonal workers (Art. 27-quater, comma 3, lett. g TUI repealed by decree 152-23);
- have entered the national territory for the purpose of performing employment activities in the context of intra-corporate transfers in accordance with art 27-quinquies (Art. 27-quater, paragraph 3, lett. f TUI).
New requirements for the Italian employer
The job offered by the Italian company must have the following characteristics:
- a duration of at least 6 months, for the performance of a work activity that requires the possession of the appropriate educational qualification and/or professional qualification attested by the relevant years of experience (Art. 27-quater, paragraph 5, lett. a, b TUI);
- the amount of annual remuneration indicated on the binding offer must not be less than the remuneration provided for in national collective agreements and in any case not less than the average gross annual remuneration as acknowledged by the Italian National Institute of Statistics – ISTAT (Art. 27-quater, paragraph 5, lett. c TUI).
The decree also implements the following procedural simplifications:
- If the blue card application concerns a foreigner who already holds a residence permit issued for highly qualified work, it is NOT necessary to re-submit the documents related to the professional qualifications, as these documents have already been verified when the permit was first issued (Art. 27-quater, paragraph 5-bis TUI);
- If the blue card application concerns a foreigner who already holds a residence permit issued for highly qualified work, the employer is NOT required to perform any market test to check for availability of other workers in the national territory, as an exception to Art 22, paragraph 2 of the TUI (Art. 27-quater, paragraph 5-ter TUI);
- In the case provided for by Article 27-quater, paragraph 8 – simplified procedure in the case of employers who have signed a special agreement with the Ministry of Interior – the foreign worker is issued a residence permit within 30 days after the submission of the mandatory online communication of the proposed job offer. While waiting for the issuance of the residence permit, the foreigner may lawfully stay in Italy and temporarily carry out the work activity until any communication from the public security authority.
Worker’s rights and equal treatment
In addition, in line with the European directive, the new decree regulates the limits of labor market access for blue card holders and the principle of equal treatment with nationals of the issuing member state. Specifically:
- A residence permit shall be denied or revokes if the foreigner no longer holds his/her qualifications or a valid labor contract for highly qualified work, or if the foreigner does not have sufficient resources to support himself/herself and family members without availing to national social assistance. In such case, however, the decree established that the decision to revoke a blue card or refuse its renewal must respect the specific circumstances of the individual case and a general principle of proportionality (Art. 27-quater, paragraph 12, lett. b-bis and d TUI);
- Limited to the first 12 months of legal employment in Italy, the foreigner may only engage in work activities that comply with the conditions of admission and limited to those for which the blue card was issued. Changes of employer during the first 12 months are subject to prior authorization by the local labor authorities. In case of unemployment: during the period of unemployment, the Blue Card holder is authorized to seek and take up employment in accordance with the conditions of initial admission (Art. 27-quater, paragraph 13 e 13-bis TUI).
- A blue card holder may engage in a self-employment activity, in parallel with highly qualified subordinate work activity (Art. 27-quater, paragraph 13-ter TUI).
- Residence permits for family reasons, issued to family members of the blue card holder, can be converted into residence permits for employment, self-employment or study, if the relevant requirements are met (Art. 27-quater, paragraph 16 TUI).
Mobility within the European Union
Finally, the decree defines the mobility rules for workers holding blue cards issued by other member states, both with regards to short-term mobility and long-term mobility. Specifically, according to Art. 27-quater, paragraph 17 of the TUI:
- Foreigners holding a valid EU blue card issued by another member state may enter and stay in Italy to carry out a professional activity for a maximum of 90 days within a period of 180;
- After 12 months of legal residence in another member state, a foreigner holding a valid EU blue card issued by that state may enter Italy without the need for a visa, in order to engage in highly qualified work, for a period of more than 90 days, subject to the issuance of a work permit. This period is reduced to 6 months if the foreigner enters Italy from a second member state to which he/she had moved from a first member state, for the same reasons.
- Within 1 month from the foreigner’s entry into the national territory, the employer submits an application for the relevant work permit. Alternatively, the application for the work permit can be submitted by the Italian employer even if the EU blue card holder is still residing in the first member state.
- Within 30 days from the submission of the complete application, the relevant decision is communicated to the applicant and to the member state that issued the EU blue card.
- Within 8 working days from the entry into the Italian territory or from the issuance of the work permit approval (in case the worker was already present in the national territory), the worker must declare his/her presence and apply for a local residence permit.