Europe | The Intra-Corporate-Transfer (ICT-) Card as a vehicle for facilitating the intra-corporate transfer of third-country nationals to Europe
Published on 6th Dec 2018
Since 1 January 2018, the ICT-Card has become the exclusive instrument for the posting of specialists, management personnel and trainees in Europe. It is a new residence permit for non-EU citizens coming to Europe to work on assignment and is addressed to those employees who are employed in an undertaking outside the EU and are transferred to a European branch of the company.
In what follows, the ICT card will be briefly presented using the example of its implementation in Germany.
What is the ICT-Card?
The ICT-Card was implemented in accordance with the regulations of the ICT-Directive of the European Union (Council Directive 2014/66/EU). The purpose of this residence permit is to make intra-corporate transfers within the European Union easier. For Germany, the ICT-Card has been implemented with effect from 1 August 2017 by inserting Sec. 19 b into the Residence Act.
The new residence permit applies if the employee stays in Europe for more than 90 days up to a period of three years. The holder of an ICT-Card e.g. issued in Germany can also work in another EU member state for a company of the same group. This is possible for up to 90 days in a 180-day period. In this case, an application for a separate permit in the other country is unnecessary, which considerably simplifies cross-border activity within Europe.
How does this affect your company?
The ICT-Card concerns companies wishing to temporarily engage employees from outside the European Union in a branch office of the company within the European Union.
In practice, The ICT-Card replaces in Germany the previous expert deputation according to Sec. 29 subsec. 5 Employment Ordinance (BeschV). Although this norm still exists, its scope of application is very limited. Because of the introduction of the ICT-Card, it now only applies to assignments of up to 90 days. It is therefore important for posting companies to change their own processes in the case of longer assignments to ensure that the requirements of the ICT-Card are met, rather than those of Sec. 29 of the Employment Ordinance . In this context, one of the ICT-Card's challenges is to align the salaries of posted employees to those of a comparable employee in Germany.
As already stated, the ICT-Card has the important advantage that the employees may not only work in Germany, but in other EU countries as well. Thus, the ICT-Card greatly reduces the company’s administrative burden and also the risk of non-compliance from an immigration law point of view.
How to get an ICT-Card?
A non-EU employee who shall work as management personnel or as a specialist in the hosting branch office is issued with an ICT-Card if:
- the employee has been employed by his employer or the business group for at least 6 months before the start of the intra-company transfer and continuously remains employed during the whole time of the deputation;
- the intra-company transfer lasts more than 90 days;
- the Federal Employment Agency has given its consent;
- the employee has an employment contract valid for the duration of the intra-company transfer and, if necessary, a written statement of deputation (required if the employment contract does not contain the possibility of a transfer); and
- the employee can prove he/she has the requisite occupational skills.
In addition, compensation and working conditions must be equal to those of a comparable employee working in Germany.
A trainee may be issued with an ICT-Card under the same conditions as management personnel or a specialist. However, the trainee does not have to prove any occupational skills.
The introduction of the ICT-Card is a considerable benefit for companies that operate globally and want to temporarily engage third-country nationals in Europe. So far, the new residence permit has not been widely used. This may be due to the fact that it is new and many companies are not yet aware of it. In addition, some EU member states have yet to implement the Council Directive 2014/66/EU. For example, Austria and Estonia have already created national regulations in addition to Germany, while countries such as Belgium and Bulgaria have not. In future, however, it can be assumed that this residence permit will become extremely relevant due to its innumerable advantages.