Intra-Corporate transfer and posted workers

Margarita V. Stavropoulou

Attorney at law

Intra- corporate transfer

Directive 2014/66/EU of the 15th of May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, has already been implemented in Greece with the entrance into force of the Law No 4540/2018(A 91/22-05-2018).

The Directive contributes to the accomplishment of the goals set forth in the Commission’s Communication of 3 March 2010 entitled ‘Europe 2020 for the support of economic revival of the European Union (EU) following the economic and financial crisis and for a smart, sustainable and inclusive growth for the European Union’. Any measures which facilitate the process required for third-country managers, specialists and trainee employees to enter the Union in the framework of an intra-corporate transfer have to be seen in that broader context.

According to the aforementioned Directive, ‘intra-corporate transfer’ means the temporary secondment for occupational or training purposes of a third-country national who, at the time of application for an intra-corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which the third-country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States¹.

Moreover, the provisions introduced by the aforementioned Directive refer to managers, specialists and trainee employees, whereas the Greek Law implementing the Directive introduces some exceptions from the abovementioned persons. In particular, the persons exempted are those who apply for a residence permit as researchers in accordance with articles 57 to 68 of the Immigration Law, the posted workers of the Directive 96/71/EC of 16 December 1996, self- employed persons etc.². The most essential requirement for the submission of the application of the permit for intra – corporate transfer is the secondment from an undertaking established outside the territory of a Member State, to an entity and belonging to the undertaking or to the same group of undertaking, according to article 2 of Law 4172/2013. Furthermore, there is a minimum time period of work experience required, which is 12 months for managers and specialists and 6 months for trainee employees³.

The application for the permit for intra- corporate transfer is submitted to the competent service of the Hellenic Ministry of Migration Policy and the permit is issued within 90 days, provided that all requirements are fulfilled. The permit issued therein shall bear the indication “ICΤ”
(Intra Corporate Transferee).

Directive 96/71/ΕC concerning the posting of workers in the framework of the provision of services.

Law 4540/2018, implementing Directive 2014/66/ΕU and the Presidential Decree No 219/2000 that implemented Directive 96/71/ΕC have many similarities as regards their purposes, i.e. the facilitation of mobility of employees in the frame of intra – corporate transfer and the posting of workers, through the creation of flexible procedures and the facilitation for the exchange of qualifications, Knowledge and innovation, thus promoting the competitiveness between companies. Both the aforementioned Directives safeguard the equal treatment of the transferees or posted workers with nationals occupying comparable positions as regards the remuneration which will be granted during the entire transfer. Hence, the main difference between the two statutes of Law is related to the scope; Directive 2014/66/EU relates to entities established in third countries, whereas Directive 96/71/EC concerns entities established in the European Union. Furthermore, the process for posting workers according to the Directive 96/71/EC, is rather complex, since the Labor Inspectorate is involved. The Inspector is competent for the surveillance and control of the implementation of the specific process. It is also worth noting that in the case of posting workers, Regulation 883/2004 of the European Parliament and the Council on the coordination of social security systems, applies.

To summarize, we have to note that the framework of intra- corporate transfer is a necessity of arising from the new landscape created by the modern business and financial reality, as well as the expansion of multinational group of companies. It would not be uncertain to foresee that the relevant legislation may be enriched shorlty in the future, in line with the development of the rhythm and ethics of modern business life. Consequently, Immigration Law will have to respond to any new requirements. This is both desirable and legit, since this it fulfils the very purpose of Immigration Law: to respond to human needs and follow up the new economic and social conditions, that shape them.