Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons

1) OBJECTIVE

To lay down principles to guide the Member States in the application of the policy on admission for the purpose of pursuing activities as self-employed persons.

2) UNION MEASURES

Council resolution of 30 November 1994 relating to the limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons.

3) CONTENTS

The Council recalls that, in the report on immigration and asylum adopted by the Maastricht European Council in 1991, priority was given to the harmonisation of policies on admission for the purpose of pursuing self-employed occupation. The 1994 work programme in the field of justice and home affairs also included, as a priority measure, a decision to conclude the deliberations on the admission of self-employed persons.

The approach adopted by the Member States (Part A of the resolution) is to admit, for the purpose of pursuing self-employed occupation, only those third-country nationals who add value (investment, transfer of technology, job creation) to the economy of the host country. The general criteria for examining requests for admission of third-country nationals in search of employment are set out in Part C of the resolution. The main criterion is that Member States may allow third-country nationals wishing to pursue activities as self-employed persons to enter their territory where it has been duly established that that activity will benefit the economy of the host State.

Part C contains guidelines on the admission procedure. The admission procedure should ensure that persons who quite obviously wish to engage in paid employment or whose partnership or directorship amounts to disguised paid employment are not admitted as self-employed persons. Requests for admission must be accompanied by the following:

• documents indicating the nature, scale and duration of the activity the person wishes to engage in;
• documents indicating the number of staff likely to be required;
• a description of the premises where the activity will be carried out; such premises must be appropriate for the activity concerned;
• evidence of the funds available for the intended purpose.

The following could for example be required for assessing compliance with legislation in force, in accordance with national legislation:

• proof that the self-employed person meets the conditions of the host Member State regarding professional qualifications and access to the occupation;
• in the case of companies or firms, the instrument of incorporation, evidence of publication or registration thereof, and the names of the directors and managerial staff of the associates authorised to act on their behalf;
• proof such as police documentation or similar documents, showing the integrity of the person concerned.

Authorisation to engage in a self-employed activity will be granted in accordance with the provisions of national aliens legislation and in writing, for example in the form of a passport stamp or other document. Such authorisation will be personal and non-transferable.

All requests for renewal must, where so required under Member States' national legislation, be accompanied by documentary evidence that the self-employed person offers guarantees for the continued orderly pursuit of his occupation.

Persons already present in the territory of a Member State as students, trainees, seasonal workers, service providers, contract workers or for other reasons will not as a general rule be permitted to extend their stay for the purpose of establishing themselves as self-employed persons. Such persons must leave the country once the purpose of stay on the basis of which there were given leave to enter the country has ceased to apply.

Nothing in the resolution prevents any Member State from reserving the right to admit to its territory, in compliance with its national legislation, third-country nationals who make substantial investments in the commerce and industry of that Member State if there are important economic grounds for derogating from the principles of the resolution.

The resolution concerns only individuals and does not affect the setting up of firms.

"Activity as a self-employed person" means any activity carried out in a personal capacity or in the legal form of a company or firm within the meaning of the second subparagraph of Article 58 of the EC Treaty, without the person concerned being answerable to an employer in either case.

Only those associates who are actively involved and whose presence is essential to the achievement of the company's or firm's aims and to its management may be authorised to establish themselves in the host Member State's territory.

The resolution does not apply to (Part B of the resolution):

• persons who have right of free movement under Community law and members of their families;
• third-country nationals who have been allowed admission for the purpose of family reunification.
• third-country nationals whose access to employment is covered by rights stemming from agreements concluded with third countries which are governed by Community law;
• third-country nationals entering the Member States in order to engage in paid employment;
• third-country nationals entering the Member States for study purposes.

Last updated: 12.07.2005