This article provides an overview of Vander Elst implementation in several countries. The Vander Elst process derives from a 1994 ruling by the European Court of Justice regarding the right of a European Union (EU) company to provide services within the EU. It generally allows a non-European Economic Area (EEA) national who is legally employed by a company in an EU country to provide services on a temporary basis to a company in another EU country on behalf of his or her employer without the need to obtain a work permit. A further judgment was delivered in 2006 (Case C-244/04) regarding whether or not the non-EEA employee should have an employment history for a specific duration of time with his or her employer. The 12 months being imposed by some countries was considered disproportionate. However, as the court did not suggest what period of employment might be acceptable, a minimum period is not required before posting an employee to the State for the purpose of providing a service for a limited period.
If certain conditions are met, no work permit is required for non-EEA employees employed by a company established in an EEA Member State that provides services in Belgium. Under Belgian law, the Vander Elst work permit exemption can be invoked for non-EEA employees who are entitled to reside in the EEA member state of their residence for more than three months. The employees must also be lawfully employed in the EEA member state of their residence. This implies that they have a work permit, valid for the duration of the work to be performed in Belgium, as well as a regular employment contract. The foreign employees must hold passports and residence permits, valid up to the duration of the work in Belgium, to guarantee their return to their countries of origin or residence. There is no seniority requirement for the employees with the sending companies.
The sending EEA company (for audits) and/or the employee (for visa applications, or for registration for residence purposes) must be able to prove that the Vander Elst exemption applies. In practice, the interpretation of the words “provide services” can be an issue. Most authorities require that the work in Belgium be performed on the basis of a direct contract between the sending EEA company and the Belgian company. The employee may encounter difficulties when registering for long-term residence on the basis of the Vander Elst work permit exemption. It can be a challenge to convince municipal authorities that the exemption applies.
France recognizes the treaty rights on delivery of service from a business in a member state to a client located in France. In the framework of such delivery of service, the business may post its third-country employee to France, without being subject to a work permit in France, in accordance with case law in the Vander Elst and subsequent rulings. Such third-country posted worker must be a local employee of the service provider and be authorized to live and work in the member state where the service provider is located. The employee must also be covered under the social security of the member state where he or she is employed. If the posting in France will last more than 90 days, the third-country employee will be subject to a EU service provider permit to stay. The permit to stay is valid for 12 months, and usually is renewed once only.
If the third-country employee is a visa national and will enter France from outside of the Schengen Area, he or she will be subject to a Schengen visa.
To qualify under the Vander Elst ruling, the employee must be hired by a company established in another European Union state. No specific seniority with the sending company is required. The Italian company must send an online notice to the Immigration Office. If the employee already holds a Schengen residence permit, he or she can enter Italy without applying for a visa. If, on the contrary, the employee holds a residence permit issued by a non-Schengen country, he or she must apply for the relevant visa at the Italian consulate in the country of residence. The posting to Italy cannot exceed four years.
The Vander Elst ruling was implemented in Italy in 2007 with Law 46/2007. Until now, however, it has not been fully implemented. For workers coming from a Schengen country (who do not need a visa), the police—usually alleging that the individual does not have the “necessary” work visa—refuse to issue a permit of stay. For workers coming from a non-Schengen country (the United Kingdom, for example), the online system does not allow these kinds of applications. Therefore, Immigration Offices cannot send the required online notices to the consulates and the visas cannot be issued.
To qualify under Vander Elst in the Netherlands, the employee must be a regular employee of the company in the sending state in the European Union (EU), European Economic Area (EEA), or Switzerland and must have a valid permit to work and stay in that country. The work assignment in the Netherlands must be temporary (with a maximum duration of two years) and the authorities must be notified in advance.
Nature of the service provided: In its decision of September 11, 2014 (Essent case, C-91/13), EU Court of Justice (EUCJ) has made it clear that all types of services are allowed. Specifically, a service consisting of the posting of employees within the meaning of Directive 96/71/EC, article 1(3)(c), falls under the Vander Elst doctrine. The exclusion of workers of temp agencies under the Vicoplus case law (Case C-307/09) only applies to workers in newly acceded Member States during the transition period; i.e., currently to Croatian workers sent from Croatia to other Member States.
Procedure: The company must notify, in writing, a specific department of the Ministry of Social Affairs at least two days before the employee starts working. If the worker will stay in the Netherlands longer than the limit of his or her Schengen visa or visa-free stay, the employer must apply for a residence permit with the immigration authorities.
Partners and children under 18 can apply for a dependent residence permit based on family reunification.
Requirements and documents: For the notification, the employer should provide:
- a copy of the valid permit of the employee to stay and work in the member state where the company is based, and
- a copy of the service contract
For the (optional) residence permit, the employer should provide the following additional documents:
- a labor contract between employer and employee, and
- a copy of pay slips
Complications: One problematic aspect is that the only feedback the employer receives on the notification is a confirmation once the notification is complete. This does not confirm in any way that the work to be carried out meets all requirements. If in the course of a random Labor Inspectorate audit the Inspectorate concludes that not all requirements of the cross-border provision of services are met, both the client and the service provider will be fined a fixed amount of €12,000 per deployed employee.