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Vander Elst Ruling: Provision of Services in the European Economic Area and Switzerland

A special mention of The Vander Elst ruling is warranted here. Vander Elst is settled case law of the European Tribunal of Justice. Based on the EU Principle of Freedom of Services, it holds that third country nationals legally employed by an EU service provider and posted to another EU country to provide services do not require work permits in the second EU member state. Such a requirement would be a restriction to the Free Provision of Services, one of the four principles of the single market.

Notwithstanding this principle, however, regarding the third country national’s authorisation of stay, a Schengen visa, Schengen visa exemption, or residence permit may still be required. The second member state may require a visa or residence permit depending on three factors:

• Applicant’s nationality, i.e. whether the employee is Schengen visa required or exempt;
• EU member state of residence, i.e. whether within or outside the Schengen Area; and
• Duration of the assignments, i.e. a Schengen visa or exemption may be enough if under three months, but a residence visa/permit if over three months.

It should be noted that there is no specific qualification, experience or seniority required to qualify for this route.

 

Background

“Vander Elst” has its origin in one of the first judgments of the European Court of Justice in 1994: Raymond Vander Elst v Office des Migrations Internationales. There have since been a number of additional rulings from the CJEU further defining the Vander Elst Principle. However, despite being binding EU law, there has not been EU legislation specifically regulating this work permit exemption from an immigration perspective. As a result, third country nationals employed by EU service providers do not benefit from the Vander Elst case law (as much as they should).

For all those EU/EEA/Swiss service providers considering this route, we offer the following useful considerations based on our practical experience.

 

Useful Considerations

For all those EU/EEA/Swiss service providers considering this route, we offer the following useful considerations based on our practical experience.

Duration

There is no minimum or maximum duration for this exemption in the Vander Elst Case Law. It is only mentioned that the provision of services must be “temporary” in nature and employees must return to their home EU/EEA/Swiss country at the end of the assignment. This means that, in practice, renewals of this work permit exemption are ultimately decided at each immigration authority’s discretion.

A few countries only accept the Vander Elst work permit exemption for assignments of up to 90 days (i.e. Germany, Finland and Sweden). According to the Agreement of Free Movement of Persons between the EU and Switzerland, Switzerland typically allows the Vander Elst work permit exemption if the provision of services is of no more than three months or 90 days per calendar year.

 

Practical Use

While the Van der Elst work permit exemption is a common immigration route in France or Spain, it is rarely used in the UK, Italy or Portugal. Consequently, standardised and clearly identified service provider work permits may be easier to obtain in EU countries where immigration authorities are not familiar with this work permit exemption.

 

Mobility Categories Covered

It is important to note that not only contractual service providers, but also intra-corporate transfers (ICTs) may qualify for a Vander Elst work permit exemption in Spain, France, Romania, Czech Republic, Hungary, Slovenia, Poland, and Luxembourg. However, in countries such as Italy or Portugal, the Vander Elst ruling can only be invoked in the contractual provision of services. ICTs do not qualify.

 

Geographical Scope

While some EU countries apply the Vander Elst to EEA and Swiss service providers, others only apply it to EU service providers.

 

Bottom Line

Undoubtedly, this is the reason why the Vander Elst ruling is always a popular topic of immigration forums.
Uncertainty surrounding its application along with its multiple variations across the EU/EEA/ Switzerland is a significant challenge for employers. Rather than relying on general principles and jurisprudence, the Van der Elst and its qualifying criteria, procedure, duration and geographical scope should rightly have been established by the EU legislature.

We strongly recommend any EU/EEA/Swiss service providers who wish to benefit from this work permit exemption for their employees seek advice on the applicability of a Vander Elst option, on a case-by-case basis.

 

 

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