CHAPTER IGENERAL PROVISIONS

Article 1Subject matter

The purpose of this Directive is to determine:

  1. (a)

    the conditions of entry and residence for more than three months in the territory of the Member States of third-country nationals for the purpose of highly qualified employment as EU Blue Card holders, and of their family members;

  2. (b)

    the conditions for entry and residence of third-country nationals and of their family members under point (a) in Member States other than the first Member State.

Article 2Definitions

For the purposes of this Directive:

  1. (a)

    ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty;

  2. (b)

    ‘highly qualified employment’ means the employment of a person who:

    • in the Member State concerned, is protected as an employee under national employment law and/or in accordance with national practice, irrespective of the legal relationship, for the purpose of exercising genuine and effective work for, or under the direction of, someone else,

    • is paid, and,

    • has the required adequate and specific competence, as proven by higher professional qualifications,

  3. (c)

    ‘EU Blue Card’ means the authorisation bearing the term ‘EU Blue Card’ entitling its holder to reside and work in the territory of a Member State under the terms of this Directive;

  4. (d)

    ‘first Member State’ means the Member State which first grants a third-country national an ‘EU Blue Card’;

  5. (e)

    ‘second Member State’ means any Member State other than the first Member State;

  6. (f)

    ‘family members’ means third-country nationals as defined in Article 4(1) of Directive 2003/86/EC;

  7. (g)

    ‘higher professional qualifications’ means qualifications attested by evidence of higher education qualifications or, by way of derogation, when provided for by national law, attested by at least five years of professional experience of a level comparable to higher education qualifications and which is relevant in the profession or sector specified in the work contract or binding job offer;

  8. (h)

    ‘higher education qualification’ means any diploma, certificate or other evidence of formal qualifications issued by a competent authority attesting the successful completion of a post-secondary higher education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution by the State in which it is situated. For the purposes of this Directive, a higher education qualification shall be taken into account, on condition that the studies needed to acquire it lasted at least three years;

  9. (i)

    ‘professional experience’ means the actual and lawful pursuit of the profession concerned;

  10. (j)

    ‘regulated profession’ means a regulated profession as defined in Article 3(1)(a) of Directive 2005/36/EC.

Article 3Scope

1.

This Directive shall apply to third-country nationals who apply to be admitted to the territory of a Member State for the purpose of highly qualified employment under the terms of this Directive.

2.

This Directive shall not apply to third-country nationals:

(a)

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

(b)

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 granted15 or have applied for international protection under that Directive and whose application has not yet given rise to a final decision;

(c)

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

(d)

who apply to reside in a Member State as researchers, within the meaning of Directive 2005/71/EC, in order to carry out a research project;

(e)

who are family members of Union citizens who have exercised, or are exercising, their right to free movement within the Community in conformity 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 States16;

(f)

who enjoy EC long-term resident status in a Member State in accordance with Directive 2003/109/EC and exercise their right to reside in another Member State in order to carry out an economic activity in an employed or self-employed capacity;

(g)

who enter a Member State under commitments contained in an international agreement facilitating the entry and temporary stay of certain categories of trade and investment-related natural persons;

(h)

who have been admitted to the territory of a Member State as seasonal workers;

(i)

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

(j)

who are covered by 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 services17 as long as they are posted on the territory of the Member State concerned.

In addition, this Directive shall not apply to third-country nationals and their family members, whatever their nationality, who, under agreements between the Community and its Member States and those third countries enjoy rights of free movement equivalent to those of Union citizens.

3.

This Directive shall be without prejudice to any agreement between the Community and/or its Member States and one or more third countries, that lists the professions which should not fall under this Directive in order to assure ethical recruitment, in sectors suffering from a lack of personnel, by protecting human resources in the developing countries which are signatories to these agreements.

4.

This Directive shall be without prejudice to the right of the Member States to issue residence permits other than an EU Blue Card for any purpose of employment. Such residence permits shall not confer the right of residence in the other Member States as provided for in this Directive.

Article 4More favourable provisions

1.

This Directive shall be without prejudice to more favourable provisions of:

(a)

Community law, including bilateral or multilateral agreements concluded between the Community or between the Community and its Member States and one or more third countries;

(b)

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

2.

This Directive shall not affect the right of Member States to adopt or retain more favourable provisions for persons to whom it applies in respect of the following provisions of this Directive:

(a)

Article 5(3) in application of Article 18;

(b)

Articles 11, 12(1), second sentence, 12(2), 13, 14, 15 and 16(4).