The amended Dutch Foreigners (Employment) Act and underlying regulations
On 1 January 2022, the Dutch Foreigners (Employment) Act was slightly amended. Curious about what has changed compared to the old legislation? Bart Maes explains it in a short summary.
The most important change is actually that work permits can be issued for three years again instead of for one year. That seems quite much, but the underlying test against the ‘priority supply’ has remained unchanged, which continues to be the bottleneck of our laws and regulations in that regard. It would be much better to replace the generic and much too vague test against the priority supply with an arrangement that makes recruiting people from outside the European Union (and the European Economic Area and Switzerland, i.e. the ‘EU’, ‘EEA’ and ‘Switzerland’; please note: the United Kingdom is no longer part of this since the Brexit!) possible for professions and/or sectors that experience considerable shortages at any point in time (presently healthcare, for example). Naturally, you may still attach certain requirements to this, but at least you are focusing on foreign nationals - also referred to as third-country nationals in legal jargon - who we truly need, instead of EU, EEA or Swiss foreign nationals, because those nationals are allowed to work in the Netherlands without any prior consent. That is why our current legislation with a generic and much too vague (and therefore legally uncertain) ‘test against the priority supply’ is not sufficient. This is a nice opportunity for our new Minister of Social Affairs and Employment.
Please note: for more highly qualified/more important positions - broadly speaking with a gross monthly salary of currently at least EUR 3,549 for the under-thirties and EUR 4,840 for the over-thirties - or specialists, trainees or executives within an international group of companies, we already have specific arrangements that work very well: the highly skilled migrant scheme, the blue card scheme, and the intra-corporate transfer scheme. As far as the ‘normal test’ is concerned, it almost by definition concerns foreign nationals whose salary, position and/or educational level does not meet these criteria. However, the odd one out is the freedom to provide services. Briefly stated, what it comes down to is that if a third country national is allowed to work (and therefore generally also reside) in EU Member State A, they may for their employer in that Member State also temporarily perform services - i.e. work - in Member State B without a work permit of that Member State B if certain conditions have been satisfied and if the relevant notifications have been made. Salary, position and/or educational level as such do not play a role in that respect (even though the hard core of Dutch terms of employment must be satisfied of course). That is sometimes referred to as a ‘Van der Elst’ or an ‘Essent’ situation, named after important judgments by the European Court of Justice in this regard.
At the same time as the amendments to the Dutch Foreigners (Employment) Act, the completely new Dutch Foreigners (Employment) Act Implementation Decree 2022 also took effect. This largely concerns a ‘recodification’, i.e. an Act, Decree or Regulation is reclassified because it has been amended and supplemented so frequently that it is no longer manageable. There seem to be few changes in terms of content; everything is just in a slightly different place and with different numbering. That is particularly annoying to us professionals who have to work with it, because we need to adjust all of our templates and need to learn how to navigate it again. For example, the highly skilled migrant scheme was previously included in Article 1d of the (former) Dutch Foreigners (Employment) Act Implementation Decree and is now included in Article 2.1 of the Dutch Foreigners (Employment) Act Implementation Decree 2022. That Dutch Foreigners (Employment) Act Implementation Decree included and still includes the exceptions to the regular obligation of a work permit: work permit exempt activities, the highly skilled migrant scheme, the blue card scheme, the implementation of the Researcher Directive, the intra-corporate scheme, etc.
We still need to learn to work with it a bit, so we have not yet been able to discover all differences – which seem to be minimal in terms of content. There is one, however, that I can already highlight, which is the simplification of paragraph 1 of Article 1k of the (former) Dutch Foreigners (Employment) Act Implementation Decree, currently Article 5.2 (1) of the Dutch Foreigners (Employment) Act Implementation Decree 2022: the basic article of the regulations on international trade. That paragraph was considerably simplified, but in practice there is not much change, because the Employee Insurance Agency has always used a broad interpretation and application of that paragraph 1. Incidentally, it concerns an interesting scheme, where approval is requested once for a ‘procedure in the context of international trade’ – which can literally be anything – after which you only need to make a notification in good time of the third-country nationals who are coming to the Netherlands to work on that project, after which they can work in the Netherlands without a work permit within the limits of that procedure, and for the period for which approval has been given (in principle three years at most). If a third-country national stays longer than 90 out of 180 days in the Netherlands in this context, a residence permit for paid employment can be requested from the IND. That is a very practical solution with minimum requirements, especially for companies that carry out larger projects in the Netherlands with multiple employees, whose arrival/departure is not entirely clear in advance (or if it is not even clear at the time of the application for approval which third-country nationals will be working on that project). The Employee Insurance Agency performs a relatively strict test in respect of that application for approval - which is why it is best to leave that up to a specialist - but once it has been obtained, the rest is a piece of cake of course.
The Dutch Foreigners (Employment) Act Implementation Decree 2022 also includes Implementing Regulations to the Dutch Foreigners (Employment) Act, which were also ‘recodified’ and are currently named Implementing Regulations to the Dutch Foreigners (Employment) Act 2022. For example, additional work by students was included under §33 and is currently included in item 8.3.c.7 of the implementing rules as a schedule to those Implementing Regulations to the Dutch Foreigners (Employment) Act 2022. Once again, old wine in new bottles, because at first glance the changes in terms of content seem minimal. Simply a more logical classification and a different numbering, even though I have seen a few codifications here and there of already existing case law/legal practice, and I do see some tightening here and there. But for the time being, we have not made any shocking discoveries.
Do you have any questions? Please do not hesitate to contact me or one of my colleagues: David Wernsing or Drenusha Hoxha. We are happy to assist you!