The Council of Ministers, at its meeting No. 43 on July 17, 2023, approved, in preliminary consideration, a legislative decree implementing Directive (EU) 2021/1883 on the Blue Card-the permit that allows highly skilled non-European workers to work within the European Union.
The European Blue Card (Directive 2009/50/CE)
The blue card came into force with Directive 2009/50/EC, which established a set of 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 (for details of the minimum requirements in Italy, you can consult our dedicated article).
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 of the European Parliament and of the Council of October 2021 aims 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 is:
- 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 in (a) in member states other than the member state that first granted an EU Blue Card.
Scope of application
The new directive does not apply to the following categories of third-country nationals:
- Those who seek international protection and are awaiting a decision on their status, or who are beneficiaries of temporary protection under Directive 2001/55/EC in a Member State;
- Those who apply for protection in accordance with national law, international obligations or the practice of a Member State and are awaiting a decision on their status, or who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State;
- Those who apply to reside in a Member State as researchers under Directive (EU) 2016/801 to carry out a research project;
- Those who benefit from EU long-term resident status in a Member State under Directive 2003/109/EC and exercise their right to reside in another Member State to carry out an employed or self-employed economic activity;
- Those who enter a member state under commitments under international agreements facilitating the entry and temporary stay of certain categories of trade- and investment-related natural persons, with the exception of third-country nationals who have been admitted to the territory of a member state as part of intra-corporate transfers under Directive 2014/66/EU;
- Citizens whose expulsion has been suspended for reasons of fact or law;
- Nationals who fall within the scope of Directive 96/71/EC for the duration of posting on the territory of the member state concerned; or
- who, by virtue of agreements concluded between the Union and the Member States, on the one hand, and third countries, on the other hand, and as nationals of those third countries, enjoy free movement rights equivalent to those of Union citizens.
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 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 stipulates 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.
If the EU Blue Card issued during the three-year period is renewed, the salary threshold in the first paragraph shall continue to apply if:
- the initial three-year period has not ended; or
- a period of 24 months from the issuance of the first EU Blue Card has not ended.
Procedures and rights
The new directive then deals with 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.
It is clarified that member states are allowed to charge fees for processing Blue Card applications and applying recognition procedures for employers, but specifies that such recognition procedures should not entail disproportionate administrative costs or burdens particularly for small and medium-sized enterprises. 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.
In addition, the directive 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.
Implementation in Italy
The decree implementing Directive 8UE) 2021/1883 is preliminarily approved.
Although the contents of the future legislative decree may still be amended, before official publication, among the main simplifications are:
- The possibility of issuing the EU Blue Card also to seasonal workers who meet the requirements for highly skilled jobs, thus considered outside the maximum quotas of foreigners to be admitted to the territory of the Italian state for employment;
- The facilitation for the entry of managers and specialists working in services and information and communication technologies;
- The promotion of innovative entrepreneurship, allowing foreign nationals with an EU blue card the possibility of self-employment in parallel with employment;
- More favorable conditions for family reunification and access to the labor market of the EU Blue Card applicant’s spouse and family members.
In any case, it should be recalled that 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.