Brussels, 30 September 2010
Condition of admission of third-country nationals: Austria should allow third-country students to work to pay their studies
The European Commission has decided to initiate procedures against Austria for failing to correctly transpose EU rules on conditions of admission of third-country students, in particular with regard to provisions allowing students to work with remuneration. The Commission has, therefore, decided to refer this case to the European Court of Justice.
The deadline for the transposition of the Directive on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary activity was 12 January 2007. The Directive requires laws, regulations or administrative provisions to be adopted for that purpose, and for the text of these national laws to be communicated to the Commission.
Despite calls from the Commission, the transposition from Austria into national law of those provisions enabling students from third countries to cover part of the cost of their studies remains unsatisfactory.
In fact, Austrian legislation provides that, before granting any work permit to a student of a third-country, the Labour Office must take account of the situation of their labour market and this rule leads in practice to the exclusion of students from the labour market. Member States may indeed apply such a condition, but this possibility has to be used against the background of the general purpose of the Directive, which is to give students access to the labour market in order to cover part of the cost of their studies and to facilitate their mobility to EU destinations, and after they have used the possibility of limiting the working time for foreign students as allowed by the Directive.
The Commission has, therefore, decided to take the case to the European Court of Justice.
For more information about the infringement process, see MEMO/10/1235.
Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary activity distinguishes four categories of third-country nationals: students, pupils, unpaid trainees and volunteers.
Article 17 of the Directive provides that "outside their study time and subject to the rules and conditions applicable to the relevant activity in the host Member State, students shall be entitled to be employed and may be entitled to exercise self-employed economic activity. The situation of the labour market in the host Member State may be taken into account". Recital 18 also states that the principle of access for students to the labour market under the conditions set out in this Directive should be a general rule and that it is only in exceptional circumstances that Member States should be able to take into account the situation of their national labour markets. Members States have the opportunity to fix the maximum number of hours per week or days or months per year allowed for such an economic activity.
The directive also includes arrangements to encourage exchanges of pupils in secondary education between the European Union and third countries, and also arrangements for volunteers who may experience difficulty in obtaining a residence document because they are neither workers nor students and do not fall into any specific category of migrants.
Under the conditions laid down by the directive, third-country students already admitted by a Member State may be granted right to mobility across the EU, so as to facilitate the pathway for those pursuing studies in several Member States. It also encourages Member States to introduce procedures to speed up the issue of residence permits, thanks to the signature of an agreement between the ministry responsible for immigration and a teaching establishment.
For more information
Homepage of Cecilia Malmström, Commissioner for Home Affairs: