Now that Brexit has fully come to pass, it’s time for UK businesspeople to familiarise themselves with the details of travel to the EU. The pandemic has curbed business travel for the time being, affording UK nationals some time to understand the new framework. Curiously, little information is readily accessible online.
Under the EU-UK Trade and Cooperation Agreement made in December 2020, UK nationals are able to enter the EU as short-term visitors without having to make a visa application before travelling. They are allowed to spend up to 90 days in the EU within any six-month period.
Short-term visitors to the EU generally can undertake a number of business activities, which include:
- meetings, consultations and conferences;
- independent technical, scientific and statistical research;
- market research;
- training in techniques and work practices, but only in the form of observation, familiarisation or classroom instruction. Hands-on training is not allowed;
- trade fairs and exhibitions in a promotional capacity, without selling;
- taking orders, negotiating sales and signing contracts;
- purchasing goods or services for an enterprise;
- installers, repair and maintenance personnel and supervisors supplying services or training workers pursuant to a warranty or service contract incidental to the sale or lease of equipment from a UK entity;
- commercial transactions by management personnel and financial services personnel;
- tour and travel agents, guides or operators accompanying a tour from the UK; and
- translation and interpretation services.
However, it is important to remember that, as visitors, UK nationals travelling to the EU for business are not permitted to work. While in the EU as visitors, UK nationals cannot service contracts between UK providers and EU consumers. They cannot deliver goods or supply services themselves. Visitors cannot sell goods or services directly to the public.
Business travellers often focus on the format of their activity, but the format is a spurious factor when assessing whether they are working. For example, a business visitor might know that meetings are allowed and happily meet with a client to provide consultancy services, then invoice the client for the meeting. Although meetings are allowed, the visitor would be considered to be working illegally in this scenario.
The trade agreement references ‘economic needs tests’, which has led to some confusion as to what evidence will be required when UK nationals travel to the EU. The World Trade Organization defines an economic needs test as a “test that conditions market access upon the fulfilment of certain economic criteria”. This sounds more forbidding than it is.
Under the trade agreement, EU member states employ an economic means test to take their domestic market situation into account when deciding on a UK national’s access. They may take into account the number of, and the impact on, services suppliers who are already supplying the relevant service.
However, economic needs tests generally only apply to work visa applications. A work visa would be required where a business activity or time frame does not conform to the framework described above for visitors. If a UK national’s planned activities fall outside those permitted to visitors, they will need to apply to the particular EU member state where they plan to work for a visa under that EU member state’s national law.
Economic needs tests generally do not apply to visitors undertaking business activities, though some EU countries do apply some sort of economic needs test, sometimes in relation to specific business activities. Austria, Cyprus, Denmark, Finland, Hungary, Spain and Sweden are examples of countries that do exceptionally apply economic needs tests to visitors.
The trade agreement is perhaps full of as-yet unappreciated gems. In addition to the provisions for short-term visitors, the deal also allows UK nationals to travel to the EU as visitors to establish a branch or subsidiary of a UK entity. When pandemic-related travel restrictions lift, options under the agreement will no doubt be tested and better understood.
Samar Shams is a partner in the immigration and global mobility team at Spencer West