Intra Corporate Transfer Directive and international assignments: a Netherlands case study
In this article we examine the implementation of the Intra Corporate Transfer Directive (“ICT Directive”) in the Netherlands, as an illustration of its implications for employers in a particular jurisdiction, and to highlight some “knock-on” effects in other EU countries.
The ICT Directive will have a significant impact on non-EU employers with international assignment programmes into the EU. To recap, it applies to non-EU nationals employed by an entity outside the EU who are temporarily seconded as manager, specialist or trainee to an entity in the EU within the same group of companies for more than 90 days, and who remain employed by the entity outside the EU.
What does the ICT Directive mean for employers seconding staff intra-group to the Netherlands?
- The ICT Directive sets conditions of entry and residence of third-country nationals in this context, including limiting secondments to a three-year period.
These conditions include:
- Where the ICT Directive applies, employers will not have a choice as to which immigration route to use for the seconded employee: employers are not allowed to make use of any alternative national procedures such as (in the Netherlands) the highly skilled migrant program (subject to a few exceptions).
- Employers need only apply for a residence permit for the seconded employee; a work permit is not required. The residence permit will be issued for a maximum of three years (one year for trainees).
- After these periods have expired the employee must leave the EU for at least six months in order to be able to re-apply for a residence permit under the ICT Directive.
Additional important conditions which have been implemented in Dutch national law:
- the employee must have been employed for at least three months with the non-EU employer before the assignment into the EU;
- a manager /specialist within the scope of the ICT Directive must have experience working at a level that requires a bachelor degree. A trainee must possess a masters degree;
- The manager, specialist or trainee must receive a gross salary of at least €4,324 per month (excluding 8% allowance) for employees aged 30 and older and €3,170 gross per month (excluding 8% holiday allowance) for employees under the age of 30.
What are the implications outside the Netherlands?
A secondment under the ICT Directive can have knock-on effects in other member states: a residence permit granted by the Netherlands allows the employee to work for host entities in the same corporate group in other member states. For example, an employee who has obtained a residence permit in the Netherlands under the ICT Directive can stay and work in another member state for 90 days in any period of 180 days at maximum (“short-term mobility”) (subject to relevant procedures in the other member state(s)). Longer term mobility is also possible in certain circumstances, subject to conditions.
For more information about implementation of the ICT Directive across the EU, see our article.
How can we help?
Should you require advice on the above in the Netherlands, please contact Wendy Terporten on +31 10 224 64 34, Loyens & Loeff. For other EU countries, please contact the relevant CELIA Alliance member.
Intra Corporate Transfer-Directive (EU Directive 2014/66)
Regulation of the Minister of Social Affairs and Employment of November 21, 2016, 2016-0000224844, amending the Regulation implementing the Aliens Employment Act 2014 in connection with the implementation of Directive 2014/66 / EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L 157)