Netherlands | Immigration | Delayed implementation of the new EU Blue Card Directive

29 November 2023

Immigration

Netherlands – Delayed implementation of the new EU Blue Card Directive

Impact: High

Summary
On 28 November 2023 the Dutch Secretary of State for Justice and Security informed the Dutch Parliament that the implementation of the recast EU Blue Card Directive will be delayed. He also confirmed that the legislation implementing the previous EU Blue Card Directive would remain in place, with certain amendments to ensure that some provisions of the recast Directive would be effective temporarily until the new Directive is fully implemented.

The Detail
In 2009 the EU’s Blue Card Directive entered into force, with the aim of harmonising conditions for entry and stay in the EU for highly qualified third country nationals. However this Directive was deemed to be ineffective in practice. As a result, a new so-called ‘recast’ EU Blue Card Directive entered into force in 2021. For more information on the changes see our immigration alert Amended EU Blue Card Directive Takes Effect of 23 November 2023.

The new Directive
The main revisions of the recast Directive include facilitated intra-EU mobility, less stringent contractual and qualification requirements, a lower salary threshold and shorter processing times. Member States had until 18 November 2023 to implement the changes into national law. However, the Dutch Secretary of State for Justice and Security yesterday informed the Dutch lower house that this deadline could not be met. As a result, not all changes under the recast Directive will be effective in the Netherlands.

Direct effect of the new Directive
To limit the divergence between the Dutch EU Blue Card scheme and the recast Directive, the Secretary of State has instructed the Dutch Immigration and Naturalisation Service (IND) to temporarily amend their policy and processes in light of the recast Directive. More specifically, the IND has been instructed to implement certain changes if the provisions in the recast EU Blue Card Directive are unconditional and sufficiently clear and precise to warrant direct applicability in practice.

The IND is currently working on processing the amendments, however it is expected that the following changes will be implemented by the IND temporarily:

• The minimum duration of a Dutch employment contract will be 6 months (instead of the previous 12 months).
• IT managers and professionals, to be eligible without having a university diploma / degree if they have relevant work experience for at least 3 years within the past 7 years before applying. For other sectors, the labour activities have to be deemed highly qualified work in the Netherlands, which can be shown by a university diploma / degree being needed to be able to operate the function role or sector where the Dutch company is operating in. The diploma / degree must be based on a programme of at least 3 years.
• The minimum gross salary threshold remains unchanged at EUR 5,867 (excluding holiday allowances) per month for 2023 but this amount will be indexed shortly for 2024.
• Holders of an EU Blue Card issued by another Member State will be permitted to perform business visitor activities, such as attending conferences or short projects, for a maximum period of 90 days within a period of 180 days without the need to apply for a work permit.
• The minimum accrued residence in another Member State on the basis of an EU Blue Card that can be counted towards the duration of stay required for a Dutch permanent residence permit, will be 12 months (down from 18 months). This period is reduced to 6 months when moving from a second member state to the Netherlands.
• The individual will have a maximum of 6 months to find a new Dutch employer if the individual becomes unemployed, on the condition that the individual has been in possession of an EU Blue Card for at least 2 years. If the individual has had the EU Blue Card for less than 2 years, the individual will only have a maximum search period of 3 months. However both search periods cannot be longer than the validity of the actual EU Blue Card.

Of these changes, the most far-reaching are the exemption from the degree requirement for IT managers / professionals and the possibility to perform business activities or short projects in the Netherlands based on an EU Blue Card issued by another member state. However, how this latter change will be enforced in practice remains to be seen. For example, it will be the Dutch Labour Inspectorate – as opposed to the IND – that will determine whether a work permit is required when carrying out an audit and they are likely to base their findings on Dutch legislation (as opposed to the provisions of the recast Directive).

Implementation timeline
In his statement to the lower house, the Secretary of State confirmed that the delayed implementation is due to discussions between parties in Prime Minister Mark Rutte’s outgoing coalition as well as between government departments, which both took longer than expected. At this time, the expectation is that the legislative proposals to implement the recast EU Blue Card Directive will be put to a vote in April 2024.

It is not yet clear whether the outcome of the election on 22 November 2023 will have any effect on this process, taking into account that labour migration was a central topic in the lead-up to the election. In addition, it is not yet known which parties will form a coalition government, with the anti-immigration right-wing party of Geert Wilders, PVV, currently looking to form a government with other parties on the centre-right.

With coalition talks likely to take several months and the implementation of the recast EU Blue Card being seen as a non-controversial agenda item for the outgoing government, it is possible that the legislative amendments will pass in April 2024 before a new government is formed. In that case, the IND will amend its policy and processes again, to bring them in line with the implementing legislation and ending the current temporary direct applicability of certain provisions of the recast Directive.

What this means for employers
Despite the recast EU Blue Card taking practical effect on 18 November 2023, employers should take into account that member states are required to implement the provisions into national law. This will lead to some discrepancy between member states, especially when countries (such as the Netherlands) do not implement the Directive in time.

It remains to be seen whether the recast Directive will be more successful than its predecessor. Vialto Partners is monitoring implementation across the EU and will continue to share updates accordingly.

Contact us
Should you require more information, please reach out to your Vialto Partners point of contact, or alternatively:

Hugo Vijge, Director
Europe Immigration Advisory Lead
hugo.vijge@vialto.com 

Nini Braken-Zheng
Senior Advisory Associate
nini.braken-zheng@vialto.com 

Marijan Vrhovac
Senior Associate
marijan.vrhovac@vialto.com

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