Femke Bakker is working at the Amstelveen office of BDO. After studying international tax law at the...
New ICT-Directive: Working in the EU via inter-company transfer14 February 2017, by Femke Bakker
As of November 29, 2016, the Dutch government has implemented a new European Directive for the admission and residency of non-European employees whom are seconded within a concern from a non-EU group member to a EU-group member.
The Netherlands is one of the EU Member States which has approved this new Directive (2014/66/EU). Only Denmark, Ireland and the United Kingdom have not yet approved the regulation.
This Directive stipulates the conditions that EU Member States are allowed to implement regarding the stay of non-EU employees whom are transferred within a concern. Hence, the name ICT-Directive, also known as Inter Company Transfer.
Purpose of the ICT-Directive
The objective of the ICT-Directive is to harmonise the admission arrangements and conditions of the various EU Member States and to facilitate the mobility of employees of international concerns within the EU.
The purpose of the Directive is to make the EU more attractive to international businesses and to strengthen the international competitive position of the European labour market.
Until the ICT-Directive took effect, each EU Member State had its own rules for the admission of such employees to the labour market. For international concerns with branches in several EU Member States, this was highly confusing and administratively challenging.
These companies were faced with cumbersome procedures if they wanted to transfer their non-EU employees within the EU to another Member State. From an employee perspective, the hope is that this Directive will make it easier for non-EU employees to be seconded to the EU.
Who does the IC-Directive apply to?
The Directive applies to:
› Specialist (key personnel); and/or
If you do not have EU-nationality, you must have a contract with the concern for at least three months before coming to Europe and your principal place of residence must be and remain outside of the EU.
Furthermore, it is important that it concerns a temporary secondment to one or multiple-concern entities within Europe. The employment contract with the main employer outside of the EU must remain intact during the secondment.
Also, you must receive a salary and labour conditions that are competitive. The salary should not be that much lower of higher than the salary of another employee in your branch and with your skills.
An ICT-permit is a combined permit for residence and work. The permit must be applied for in the EU Member State in which you expect to spend the most time.
The ICT-permit is issued for a maximum of three years for managers and key personnel. For trainees the permit is issued for a maximum of one year. An extension of the stay in Europe based on the ICT-Directive is not possible.
One of the benefits of the ICT-permit is that the temporary transfer of employees from one EU-concern entity to another EU-concern entity, which has implemented the Directive as well, is possible under much less stringent conditions:
Stay of 90 days or less in a 180-day period
If you obtained the ICT-permit outside of the Netherlands and will be staying in the Netherlands for less than 90 days in a 180-day period, a notification at the Dutch UWV will suffice.
You do not need a specific working permit for the Netherlands. You can start working immediately. Please note that the offer is conditional based on the fact that your principle residence does not move to the Netherlands.
Stay of longer than 90 days in a 180-day period
If one plans to stay longer than 90 days within the 180-day period, an application is required, however this application has less stringent conditions. The employee is allowed to start work immediately, even during the application period.
Overlaps with the Knowledge Migrant Scheme
The group of people to whom the ICT-Directive applies overlaps with the group of people to whom the Knowledge Migrant Scheme also applies. However, the applicant for a residence permit cannot choose between the Knowledge Migrant Scheme or the ICT-permit.
If you fall within the scope of the ICT-Directive, this arrangement overrides. In which case, you cannot choose for a permit as a Knowledge Migrant, even if this would be more beneficial to you.
If you are locally employed within a Dutch or European company, the Knowledge Migrant Scheme will still apply, as indicated by the IND; the authorised institute regarding working and residency permits.
Under the ICT directive, your salary must be in accordance with the fair market salary. The IND has indicated that, for the time being, a fair market salary is in accordance with that of the Knowledge Migrant Scheme.
This is a gross monthly salary of 4.324 euros per month for employees of 30 years and older, and 3.170 euros for employees under 30 years based on figures for the year 2017.
The application for the ICT-Directive has to be done via the IND. It is certainly true that applications submitted before entry into the work force and which have not yet been decided on, will be dealt with under the most favourable law.
The most favourable legislation can vary depending on each case. Existing licenses of skilled migrants still remain valid. The IND has indicated that the cost of the ICT-Directive application will be equal to the cost of other applications.
Read more in Dutch on their website.