Belgium adopts Intra-Corporate Transfer Directive to boost global staff mobility

Belgium, in December 2021, fully implemented the European Union (EU) Intra-Corporate Transfer (ICT) Directive, which set up the framework for the EU ICT Permit, an exclusive instrument for the posting of management staff, specialists and trainees in Europe.

The legislation covered Directive 2014/66/EU of the European Parliament and of the European Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, the Act of 31 July 2020 on the category of temporary intra-group transfers and the Royal Decree of 26 November 2021 implementing the act of 31 July 2020.

The ICT Directive is a set of rules for multinational companies transferring non-EU nationals to their European entities within the same corporate group. It aims to facilitate the mobility of intra-corporate transferees between the EU Member States during their temporary assignments in the European Union. All EU Member States have now implemented the EU ICT Permit (except for Denmark and Ireland, who have opted out). 

What is the ICT Permit? 

The ICT Permit is a combined work and residence permit for non-EU managers and specialists that have at least a higher-education degree. It is also for non-EU trainees with a university degree transferring to an entity that belongs to the same company or group of companies within the EU. 

The temporary ICT is the temporary posting by a company established outside the European Union of a non-EU national for professional or training purposes. The transferee at the date of submission of the application must be resident outside the territory of the EU Member States, and to which the non-EU national is linked by an employment contract before and during the temporary transfer, to an entity belonging to that company or to the same group of companies established in that EU Member State. Where appropriate the temporary intra-corporate transfer also includes mobility between host entities established in one or more other EU Member States.

Who is eligible for the ICT Permit?

The ICT Directive harmonised conditions for the admission, residence, work and mobility of non-EU transferees assigned to perform work on a temporary basis within the EU subsidiaries of a multinational group.

The ICT Directive applies if all of the following conditions are fulfilled: 

• a third-country national, including eligible UK nationals, residing outside the European Union at the time of application lodges an application for the ICT Permit to be admitted to the territory of an EU Member State;
• the individual must be a skilled manager, a specialist or a trainee (employee);  
• the skilled manager, specialist or trainee must be transferred (on secondment) to one (or several) undertakings of the company or group company within the EU to which their employer belongs;
• for a maximum of three years for managers and specialists, and for a maximum of one year for trainees.

The ICT manager is a third-country national in a senior management position, whose primary function is to manage the host entity, primarily under the general supervision or direction of the board of directors or shareholders. The position includes the management of the host entity or one of its departments or sections; the supervision and control of the work of other employees performing supervisory, managerial or technical functions; the authority to recommend the hiring or dismissal or to take other actions towards staff members under the authority vested in him or her.

The ICT expert is a third-country national working within the group companies who has specialist knowledge that is key to the fields of activity, techniques or management of the host entity. In assessing this knowledge, account shall be taken not only of the knowledge specific to the host entity but also of the high level of competence of the person, including appropriate professional experience, for a type of work or activity requiring specific technical knowledge, including possible membership of an approved profession.

The ICT trainee is a third-country national with a higher education qualification who is temporarily transferred to a host entity for the purpose of professional development or to acquire training in business techniques or methods and who is paid during the period of temporary transfer (under trainee-employee status).

All must have their main residence outside the European Union when applying for the EU ICT Permit.

What are the admission criteria in Belgium? 

In Belgium, the federal and regional governments share prerogatives in this area, so the place of occupation of the transferee in Belgium must be considered to know what conditions apply for the ICT Permit. There are differences depending on the region in Belgium where the transferee is occupied.

The common rules to all three regions are: 

• there is no quota system;
• the host entity and the company established outside the EU must belong to the same company or group of companies;
• the transferred managers, specialists and trainees are required to account for several months of uninterrupted service within the company within the non-EU sending company outside the EU before applying: three months of uninterrupted service for managers, specialists and trainees (Flanders and Walloon regions) or six months (Brussels region);
• the managers and specialists must hold a higher education degree (at least three years after secondary school) and trainees must hold a university-level degree;
• short-term mobility EU ICT Permit holders from another EU Member State seeking to work at a Belgian entity of their home employer for less than 90 days over any 180-day period are authorised to live and work in Belgium provided their employer submitted a prior notification to the Belgian authorities (the posted worker (Limosa) notification); 
• long-term mobility based on an EU ICT Permit delivered by an EU Member State other than Belgium is not allowed. EU ICT Permit holders from another EU Member State can apply for a mobile EU ICT Permit with the Regional Labour Authorities prior to residing and working in Belgium for over 90 days. They can start working while their mobile ICT Permit application is pending provided that their employer submitted the Limosa notification;
• the establishment of a cooling-off period, whereby an interval of three months must elapse before submitting a new application for an EU ICT Permit for the same employee in Belgium; 
• salary requirement: EU ICT Permit applicants must have a remuneration which is at least as favourable as that offered in Belgium to workers in comparable positions in accordance with the applicable laws, collective agreements and practices; and
• the EU ICT Permit applicants must have their main residence outside the EU when applying for the EU ICT Permit.

Salary requirements

The salary of the transferred worker may not be less favourable than that of local workers in a comparable position throughout the intra-group transfer. So, the applicants' salary must be similar to local market level (local hire in a similar position).  

Given that prerogatives on work permits are partly regionalised in Belgium, salary requirements vary based on the region where the EU ICT Permit holder will be working in Belgium (yearly gross amounts 2022): 

Application process and formalities

• Short-term mobility. For work up to 90 days in Belgium in any 180-day period, ICTs who hold an EU ICT Permit in an EU Member State other than Belgium who need to perform work duties for a group company in Belgium only have to submit a Limosa notification (through their employer) to the Belgian authorities prior to coming to Belgium.
• Long-term mobility (Mobile EU ICT Permit). For work over 90 days in Belgium, EU ICT Permit holders must apply for a Mobile EU ICT Permit with the Regional Labour Authorities prior to residing and working in Belgium for over 90 days. They can however start working while their Mobile EU ICT Permit application is pending provided that their employer submitted the Limosa notification before they start working in Belgium. 
• Application process. This is similar to the one for a single permit for highly skilled workers (first approval by the regional labour authorities, then final approval by the federal immigration authorities).
• Processing time. Applications are turned around in eight weeks on average. From a legal perspective, the processing time cannot exceed 90 days for the short-term ICT Permit and 120 days for the long-term ICT Permit from the receipt by the labour authorities of a complete application file. 
• Maximum stay and "cooling-off period". After holding an EU ICT Permit for three years (managers and specialists), EU ICT Permit holders must change to another Belgian permit type (for example, the Highly Skilled Permit) or must complete a “cooling-off period” by leaving Belgium for at least three months before applying for a new EU ICT Permit. Trainees can hold an EU ICT Permit for up to one year but cannot extend this permit, except in Wallonia, where the Trainee Permit is valid for six months and is renewable once.

What about family members?

Family dependents of the EU ICT Permit holder, whether holder of an ICT Permit or the Mobile EU ICT Permit, are authorised to work in Belgium once they get their dependents residence permits, without requiring a work permit for themselves.

Osborne Clarke comment

The ICT Directive's main attraction for global companies is that it allows increased mobility of their staff across the EU. Intra-corporate transferees with a valid EU ICT Permit are exempt from Schengen visa obligations and may enter, stay and work in other EU Member States without the need to apply for another work permit for a period up to 90 days (short-term mobility). 

For long-term mobility (over 90 days), the rules are stricter. However, most of the EU Member States opted in for full-mobility, both short-term and long-term. This enables the intra-corporate transferees with a valid EU ICT Permit, delivered by another EU Member State, to live and work in the other EU Member States which opted in for full mobility, without having to apply for a local ICT Permit. In Belgium, by applying for a Mobile EU ICT Permit, EU ICT Permit holders can start working while their application is pending provided that the Limosa notification is submitted.

Businesses should check if some of their employees are eligible for the EU ICT Permit in Belgium, as it is a considerable benefit for companies that operate globally and want to temporarily engage third-country nationals in Europe.