Mobility within the EU under the ICT Directive for third-country nationals

The aim was to make it easier for international companies to post managers and specialists to different parts of the company within the European Union. In practice, the residence permits are usually only used for postings to one of the EU countries. The possibility of posting within the EU is rarely used. This is often simply because companies are unaware of the legal options or find them too complex.

Based on EU Directive 2014/66/EU, the German legislator has implemented the ICT card (Section 19 Residence Act), the mobile ICT card (Section 19b Residence Act) and short-term mobility for employees transferred within a company (Section 19a Residence Act).

The ICT card can be issued to persons who are to be seconded from a third country (i.e., outside the EU) to a German branch of a company for more than 90 days. The mobile ICT card can be issued to persons who already hold an ICT residence permit based on the relevant EU directive in another EU country and who are to be posted to a German company branch for more than 90 days. Short-term mobility for employees transferred within a company in accordance with Section 19a of the Residence Act also applies to holders of ICT residence permits from other EU countries if they are to be posted to Germany for up to 90 days. While both the ICT card and the mobile ICT card are residence permits in the sense of the law and must be obtained through an application procedure, only an entry notification is required for short-term mobility. The German authorities do not issue a residence permit for this purpose.

The ICT regulations are aimed at managers, specialists and trainees who have been employed by the company in the third country for at least six months. Managers are employees who have a management function in the German branch or in the relevant departments and can, for example, make personnel decisions. According to the definition of the Federal Employment Agency, a specialist is only someone who carries out an activity that requires specialised knowledge related to the company. Specialists must have specialised knowledge that is essential for the domestic enterprise or the domestic part of the enterprise. They must also be highly qualified and have appropriate professional experience. This term must be clearly distinguished from the term “skilled worker” as defined in the Act. Trainees within the meaning of Section 19 of the Residence Act are persons who can prove that they have a university degree and who are participating in a paid trainee programme for the purpose of professional development or further training.

Please note that the maximum duration of the transfer is three years for executives and specialists and one year for trainees. Once the maximum duration has been exhausted, a cooling-off period of six months must be observed before a new transfer under the ICT regime can be made. However, a change to other residence permits within Germany, such as the EU Blue Card, is possible as long as the relevant conditions for its issuance are met.

According to the German Federal Employment Agency (Bundesagentur für Arbeit), an intra-company transfer within the meaning of the law requires that the company or part of the company in Germany belongs to the same company or group of companies to which the employee belongs. A group of companies is defined as two or more companies linked in such a way that one company holds the majority of the capital or the majority of the voting rights of the other company or is entitled to appoint the majority of the members of the administrative, management or supervisory body. In addition, two enterprises belong to a group if they are under the unified management of the same parent enterprise. This type of affiliation is often problematic, particularly in the case of joint ventures, and it will be necessary to check legally whether ICT residence permits are applicable.

Furthermore, the posted employee must be contractually bound to the foreign employer during the transfer to Germany. This can also be achieved by suspending the employment contract in the home country and simultaneously concluding an employment contract in Germany for the duration of the assignment.

It is important to note that an ICT card can only be obtained as part of the visa procedure from a third country. Foreigners who are generally entitled to a residence permit in Germany cannot obtain an ICT card without a prior visa procedure. This applies to the nationals listed in Section 41 para. 1 AufenthV. These include nationals of Australia, New Zealand, Israel, Japan, Canada, South Korea, the United Kingdom and the USA, who can generally apply for a residence permit without a prior visa procedure. The approval of the Federal Employment Agency is required as part of the procedure. This can also be applied for in advance. It is possible to extend the ICT card within the maximum duration to be observed in Germany.

The competent foreigners authority decides on the issue of a mobile ICT card for third-country nationals who are in another EU country with an EU ICT residence permit. If the application is submitted at least 20 days before the start of the stay in Germany and the EU ICT residence permit from the other EU country is still valid, the subsequent stay and employment in Germany is deemed to be authorised. This temporary permit is valid for up to 90 days, as long as no decision has been made on the application.

The Federal Office for Migration and Refugees (BAMF) must be notified of short-term mobility, i.e., further postings of up to 90 days. If the notification is made at the time of application for the EU-ICT residence permit in the other EU country or at a later point in time, the employee may travel to Germany within the framework of short-term mobility after receipt of the notification, unless the BAMF expressly rejects this within 20 days. The BAMF must issue a certificate to this effect.

When using the various ICT regulations, the different national regulations and procedures of the various EU countries must always be taken into account. Due to its complexity, the ICT regime initially acts as a deterrent, especially for intra-EU mobility, but if applied correctly, it can be a good opportunity for international companies to flexibly deploy third-country nationals in different parts of the company within the EU.