Intra-corporate transfer – National Labour Inspectorate clarifications
The National Inspectorate of Labour, with the note no. 1057/2020, has provided clarifications on the conditions to enter and reside in Italy as part of “Intra-Corporate Transfers” or “ICT”) for non-EU workers, under art. 27-quinquies of Legislative Decree no. 286/1998, also known as the “Consolidated Immigration Act.”
Specifically, this provision, with Legislative Decree no. 253/2016 introduced into our legal system the implementing Directive 2014/66/EU, which governs the entry into Italy of executives, specialised workers or workers undergoing training to perform their work under employment contract following intra-corporate transfers, outside the quotas under Art. 3, paragraph 4, of the Consolidated Immigration Act.
Definition of intra-corporate transfer
The Inspectorate wishes to clarify intra-corporate transfer, which is defined as “the temporary transfer of a foreigner by a company established in a third-party country to the host entity, understood as:
- headquarters/branch/representative office located in Italy, of the enterprise for which the transferred employee works;
- company belonging to the same group of companies, under art. 2359 of the Civil Code – Intra-group transfer – provided that there has been an employment relationship with the parent company for at least three uninterrupted months immediately preceding the transfer date.”
It has been clarified how the host entity may coincide (i) with the headquarters, branch or representative office located in Italy which belongs to the company for which the employee works, or, alternatively, (ii) with a company belonging to the same group, given that the employee is required to have a minimum seniority at the parent company.
Conditions imposed on the host entity
The Inspectorate notes how the system requires the Italian host entity to be subject to “a series of conditions, in the absence of which the authorisation is refused or revoked, including the commitment to comply with social security and welfare obligations under Italian law, unless there are social security agreements with the country of origin (paragraph 5, letter h).”
According to the Inspectorate, it is necessary to carry out checks on the host and the parent company’s financial capacity and check that the latter can make up for the branch’s social security and welfare obligations financial failure. The Inspectorate mentions that the group’s consolidated balance sheet, translated into Italian, is a useful document to confirm the group’s adequate financial resources.
The underlying aim is to confirm that the host company has not been created “for the sole purpose of facilitating the entry into Italy of workers under intra-corporate transfer,” or if it is subject to liquidation proceedings, or has been liquidated, or does not carry out any actual financial activity.
Paragraph 15 of Article 27-quinquies introduces “cases of refusal or revocation of authorisation, for example, when the host entity has been established for the sole purpose of facilitating the entry of these workers.” It requires the necessary controls by the regional Inspectorates when the Immigration Office’s opinion is issued.
These checks cannot refer only to the analysis of the documentary data of the Italian host company turnover but must be extended to the inspections which ascertain “the effective carrying out of the company financial activities.”