(1)

For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and protection of the rights of third-country nationals.

(2)

The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national legislation governing the conditions for admission and residence of third-country nationals. In that context, it stated in particular that the Union should ensure fair treatment of third-country nationals who legally reside in the territory of a Member State and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. The European Council accordingly asked the Council to rapidly adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere was reaffirmed by the Stockholm Programme which was adopted by the European Council on 10 and 11 December 2009  (4).

(3)

▐ Provisions for a single application procedure leading to one combined title encompassing both residence and work permit within one administrative act should contribute to simplifying and harmonising the ▐ rules currently applicable in Member States. Such procedural simplification has already been introduced by several Member States and has made for a more efficient procedure both for the migrants and for their employers, and allowed easier controls of the legality of their residence and employment.

(4)

In order to allow initial entry into their territory, Member States should be able to issue, in a timely manner, a single permit or, if they issue such permits exclusively on their territory, a visa.

(5)

A set of rules governing the procedure for examination of the application for a single permit should be laid down. Those procedures should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned.

(6)

The conditions and criteria on the basis of which an application for a single permit can be rejected should be objective and laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the Acts of Accession of 16 April 2003 and 25 April 2005. Any rejection decision should be duly reasoned .

(7)

The single permit should be drawn up in accordance with Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (5), enabling the Member States to enter additional information, in particular as to whether or not the person is permitted to work. Member States should indicate – also for the purpose of better control of migration – not only in the single permit but also in all the issued residence permits information relating to any permission to work irrespective of the type of the permit or the residence title on the basis of which the third-country national has been admitted to the territory of a Member State and has been given access to the labour market of that Member State ▐.

(8)

The obligation on the Member States to determine whether an application for a single permit is to be made by a third-country national or by his or her employer should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should decide whether an application for a single permit is to be made in the Member State of destination or from a third country. Where the third-country national is not permitted to make an application from a third country, Member States should ensure that the application may be made by the employer in the Member State of destination.

(9)

The provisions of this Directive on residence permits for a purpose other than work should apply only to the format of such permits and should be without prejudice to national or Union rules on admission procedures and on procedures for issuing such permits.

(10)

The provisions of this Directive on the single application procedure and on the single permit should not apply to uniform and long-stay visas.

(11)

The deadline for adopting a decision on the application should not include the time required for the recognition of professional qualifications or the time required for issuing a visa. This Directive should be without prejudice to national procedures on the recognition of diplomas.

(12)

The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application.

(13)

The provisions of this Directive are without prejudice to the competence of the Member States to decide on the admission, including volumes of admission, of third-country nationals for the purpose of work.

(14)

Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to three months in accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (6) and Article 21 of the The Schengen acquis - Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (Schengen Implementing Convention) (7).

(15)

In the absence of Union law, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. ▐ With a view to pursuing the further development of a coherent immigration policy , narrowing the rights gap between citizens of the Union and third-country nationals who legally work in a Member State , and complementing the existing immigration acquis, a set of rights should be laid down in particular in the form of specifying the policy fields where equal treatment with own nationals is provided for third-country workers legally admitted in a Member State but not yet long-term residents. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals who legally work in Member States contribute to the European economy through their work and tax payments, and to serve as a safeguard to reduce unfair competition between own nationals and third-country nationals resulting from possible exploitation of the latter. The definition of ‘third-country worker’ in this Directive means, without prejudice to the interpretation of the concept of employment relationship in other legal acts of the Union, a third-country national who has been admitted to the territory of a Member State and legally resides and is allowed to work there in accordance with national law or practice. [Am. 123]

(16)

All third-country nationals who legally reside and work in a Member State should enjoy at least the same common set of rights in the form of equal treatment with the nationals of the host Member State, irrespective of the initial purpose of, or basis for, admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to the territory of a Member State for work but also to those who have been admitted for another purpose and who have been given access to the labour market of that Member State in accordance with national or Union law, including those admitted in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (8), Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (9) or Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (10).

(17)

Third-country nationals who are long-term residents in accordance with Council Directive 2003/109/EC (11) are not covered by this Directive because they have a more privileged status and benefit from a specific type of residence permit: ‘long-term resident – EU’.

(18)

Posted third-country nationals are not covered by this Directive. This should not prevent third-country nationals who legally reside and work in a Member State and are posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (12) ▐. [Ams. 122 and 124]

(19)

Third-country nationals who have been admitted to the territory of a Member State ▐ to work on a seasonal basis should not be covered by the Directive given their temporary status.

(20)

The right to equal treatment in specified policy fields should be strictly linked to the third-country national's legal residence and the access given to the labour market in a Member State, which is enshrined in the single permit encompassing the authorisation to both reside and work and in residence permits issued for other purposes containing the information about the permission to work.

(21)

Working conditions set out in this Directive are to be understood to cover at least pay and dismissal, health and safety at the workplace, working time and leave, taking into account any collective agreements in force. [Ams. 122 and 125]

(22)

Professional qualifications acquired by a third-country national in another Member State should be recognised the same way as those of citizens of the Union and qualifications acquired in a third country should be taken into account in accordance with the provisions of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (13). The right of third-country workers to equal treatment, as regards the recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures, is without prejudice to the competence of Member States to admit those third-country workers to their labour market. [Ams. 122 and 126]

(23)

Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems  (14). The provisions on equal treatment concerning social security in this Directive also apply to workers coming to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who have cross-border elements between Member States. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Union law, such as to family members residing in a third country. This Directive grants rights in relation only to those family members who join the third-country worker to reside in a Member State on the basis of family reunification or to family members who already legally reside in a Member State with the third-country worker. [Ams. 122 and 127]

(24)

Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level, it is for the law of each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law. [Ams. 122 and 128]

(25)

Member States should give at least equal treatment to third-country nationals who are in employment or who, after a period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred in application of Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality  (15) . [Am. 130]

(26)

Equal treatment of third-country workers does not cover measures in the field of vocational training which are financed under social assistance schemes. [Ams. 122 and 129]

(27)

Since the objectives of this Directive , namely determining a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and securing rights for third-country workers who legally reside in a Member State cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level , the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union . In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(28)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union , in accordance with Article 6 of the Treaty on European Union.

(29)

This Directive should be applied without prejudice to more favourable provisions contained in Union law and international instruments.

(30)

Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation in accordance, in particular, with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (16) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (17).

(31)

In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the TFEU and without prejudice to Article 4 of that Protocol those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

(32)

In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

(a)

a single application procedure for issuing a single permit for third-country nationals to reside for the purpose of work in the territory of a Member State, in order to simplify the procedures for their admission and to facilitate the control of their status; and

(b)

a common set of rights to third-country workers who legally reside in a Member State , irrespective of the purpose for which they were admitted to the territory of that Member State, based on equal treatment with nationals of that Member State .

(a)

‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;

(b)

‘third-country worker’ means any third-country national who has been admitted to the territory of a Member State , legally resides in that Member State and is allowed to work in that Member State in accordance with national law or practice ; [Am. 131]

(c)

‘single permit’ means a residence permit issued by the authorities of a Member State allowing a third-country national to stay legally in its territory for the purpose of work ;

(d)

‘single application procedure’ means any procedure leading, on the basis of a single application made by a third-country national, or by his or her employer, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit ▐.

(a)

third-country nationals seeking to reside in the territory of a Member State for the purpose of work ;

(b)

third-country nationals who have been admitted to a Member State for a purpose other than work under national or Union law and who are permitted to work and have been issued a residence permit in accordance with Regulation (EC) No 1030/2002; and

(c)

third-country nationals who have been admitted to a Member State for the purpose of work under national or Union law .

(a)

who are family members of citizens of the Union who have exercised, or are exercising their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States  (18);

(b)

who, together with their family members and irrespective of their nationality enjoy rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and the Member States or between the Union and a third country;

(c)

who are posted;

(d)

who have applied for admission or have been admitted to the territory of a Member State for the purpose of work as intra-corporate transferees ;

(e)

who have applied for admission or have been admitted to the territory of a Member State as seasonal workers or au pairs ;

(f)

who are authorised to reside in a Member State on the basis of temporary protection, or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status;

(g)

who are beneficiaries of international protection under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted  (19) or who have applied for international protection under that Directive and whose application has not yet given rise to a final decision;

(h)

who are beneficiaries of protection in accordance with national law, international obligations or the practice of the Member State or have applied for protection in accordance with national law, international obligations or the practice of the Member State and whose application has not given rise to a final decision;

▐

(i)

who are long-term residents in accordance with Directive 2003/109/EC;

(j)

whose removal has been suspended for reasons of fact or law;

(k)

who have applied for admission or have been admitted to the territory of a Member State as self-employed workers;

(l)

who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in, or sailing under the flag of, a Member State.

(a)

indicate the information relating to the permission to work irrespective of the type of the permit; and

(b)

issue no additional permits ▐ as proof of authorisation to access the labour market.

(a)

enter ▐ and stay in the territory of the Member State issuing the single permit , provided that he or she meets all admission requirements in accordance with national law ;

▐

(b)

have free access to the entire territory of the Member State issuing the single permit within the limits provided for by national law ▐;

(c)

exercise the specific professional activity authorised under the single permit in accordance with national law ;

(d)

be informed about his or her own rights linked to the single permit conferred by this Directive and/ or by national law.

(a)

working conditions, including pay and dismissal as well as health and safety at the workplace;

(b)

freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;

(c)

education and vocational training;

(d)

recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;

(e)

branches of social security, as defined in Regulation (EC) No 883/2004 ; [Ams. 122 and 132]

▐

(f)

tax benefits , in so far as the worker is deemed to be resident for tax purposes in the Member State concerned ; [Ams. 122 and 133]

(g)

access to goods and services and the supply of goods and services made available to the public including procedures for obtaining housing and the assistance and advice services afforded by employment offices as provided by national law, without prejudice to the freedom of contract in accordance national and Union law . [Am. 134]

(a)

under point (c) of paragraph 1, by:

▐ [Ams. 122 and 136]

(b)

by limiting the rights conferred on third-country workers under point (e) of paragraph 1 but not restricting such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed .

▐ [Ams. 122 and 137]

(c)

under point (f) of paragraph 1 with respect to tax benefits, by limiting its application to cases where the registered or usual place of residence of the family members of the third-country worker for whom he or she claims benefits is in the territory of the Member State concerned; [Ams. 122 and 140]

(d)

▐ under point (g) of paragraph 1, by :

(a)

Union law, including bilateral and multilateral agreements between the Union , or the Union and the Member States, on the one hand and one or more third countries on the other;

(b)

bilateral or multilateral agreements between one or more Member States and one or more third countries.