Can third country nationals be posted legally within EU/EEA member states
The short and unequivocal answer is “yes”.
According to the 90/180-day rule found in article 3 (1) of Regulation (EU) 2018/1806 of the European Parliament and of the Council, non-EU/EEA nationals may remain in EU member states of the Schengen Area for a maximum of 90 days within any 180-day period.
However, the right to “stay” does not, per say, entail the right to carry out a professional activity when travelling outside the EU or EEA member state that has issued the residence permit and in which the worker officially resides.
The right to “stay” does not mean, nor can it be interpreted as the right to work – either under employment or as independent worker.
If this is so, then where does the right for non-EU workers to work in other EU or EEA member states other than the one in which they reside derive from?
The right of non-EU nationals (also referred to as third country nationals) employed by a company based in a European Union (EU) or European Economic Area (EEA) member state to be posted and temporarily provide service to a company based in another EU or EEA member state arises from the European Court of Justice´s (ECJ´s) interpretation of the Article 56 TFEU (freedom to provide services).
Article 56 of the Treaty on the Functioning of the European Union (TFEU) prohibits restrictions on the fundamental right of any natural or legal person to conduct business anywhere within the EU regardless of the member state in which the person is established. It is one of the 4 fundamental freedoms of the European Single Market – the “four freedoms” of the EU single market being: free movement of goods, services, capital, and people.
For example, German authorities cannot impose restrictions on Polish painting company that wishes to provide services to a client established in Germany. According to Article 56 of the TFEU, the Polish painting company has precisely the same rights and freedoms and, is also subject to the same rules and obligations, as its competitors established in Germany. However, if the Polish painting company is playing in Germany´s camp, it has to follow the same rules as its German counterparts.
Initially, however, the reigning consensus amongst the authorities within the EU and EEA was the free movement of services only applied to citizens of EU or EEA member states – NOT to third country nationals. However, this consensus was shattered by the renowned ECJ Van der Elst ruling.
What is the ECJ´s Van Der Elst ruling about, what did it determine and what were the implications?
Mr Raymond Van der Elst was a Belgian employer who lawfully employed Moroccan (non-EU) citizens in Belgium. At a given moment in time, the workers were needed to provide services on behalf of Van der Elst in neighbouring France.
Upon arrival, the French authorities levied fines against the workers stating that they did not have permission to work in France. Mr. Van der Elst challenged France´s decision and filed an appeal with the European Court of Justice (ECJ) contending the right of an EU company to provide services within the EU, which he subsequentially went on to win in 1994.
The ECJ´s rulng confirmed that third country nationals working in an EU member state are permitted to work in another EU member state, to provide services for a limited period of time, as long as certain conditions are met.
To whom does the Van de Elst ruling apply?
The Van der Elst ruling applies to all non-EU/EEA employees holding a valid EU/EEA residence permit.
Requirements
- A formal agreement must exist between the employer in the EU/EEA member state seconding the worker and the client in the EU/EEA member state for which the service is to be provided
- The TCN must be a legal resident in the country where he is effectively employed
- The TCN must be in possession of an employment contract with the employer which is temporarily posting him/her to another EU or EEA member state.
The Nature and duration of posting and the issue of work permits
It is important to note and should always be remembered posting is temporary in nature – that is, posting allows to provide service in another EU/EEA member state for a limited duration – not for an indefinite period of time.
As a matter of fact, in paragraph 4 of Decision Nr. A3, dated 17th of December 2009 of The Administrative Commission for the Coordination of Social Security Systems within the EU it is stated that “the anticipated duration of the posting cannot exceed 24 months in total” (sic) – referring specifically to an initial period of 12 months, plus a 12 month extension if required.
Furthermore, Paragraph 3(c) of Decision Nr. A2, dated 12th of June of 2009 The Administrative Commission for the Coordination of Social Security Systems within the EU states that “once a worker has ended a period of posting, no fresh period of posting for the same worker, the same undertakings and the same Member State can be authorized until at least two months have elapsed from the date of expiry of the previous posting period” (sic). This means that once a worker´s posting mission has terminated, he/she can only be posted again once a period of at least 2 months has elapsed.
From our experience we have learned that one of biggest and most concerning misconceptions held by many, particularly by clients in the EU/EEA member states to which workers are posted regards the need for posted non-EU worker to be in possession of a work permit.
The concern clients harbour, although misplaced, is quite understandable. In most, if not all, EU/EEA countries, a work permit is required for a TCN to enter and work in their territories. However, this is only the case when an employer established in a given EU/EEA member state wishes to sponsor the work visa application of TCN living outside its borders. In other words, a work permit is only required when the client wants to hire the TCN directly – that is, have the worker on its own payroll.
Posting represents a totally distinct reality. The non-EU worker is temporarily posted by his/her legal employer in the country in which he lawfully resides to temporarily provide service to a client (i.e. user undertaking) in another EU/EEA member state. As we have shown, the 1994 Van der Elst ruling determined that under Article 56 of the Treaty on the Functioning of the European Union (TFEU), a moral or legal person established in EU/EEA member state A must be free to conduct business in EU/EEA member states B, C, D, etc without restrictions.
What is a “work permit”?
Essentially, a work permit is nothing more than a “permission” to work. But, within the context of posting, such permission is not only unwarranted, it is inadmissible. A moral or legal person established in EU/EEA member state A does not require “permission” to temporarily post workers that he legally employs to a user undertaking established in EU/EEA member state B. If the authorities in EU/EEA member state B were to request a work permit they would be doing so in clear violation of EU law.
In fact, on the last page of “The Judgement of the Court” regarding Case C 43/93 (Van Der Elst) the Justices concluded that their decision must be “(…) interpreted as precluding a Member State from requiring undertakings which are established in another Member State and enter the first Member State in order to provide services, and which lawfully and habitually employ nationals of non-member countries, to obtain work permits for those workers from a national immigration authority(…)” (sic).
In a similar case regarding the posting of workers, the Court of Justice held the following in Danieli & C. Officine Meccaniche SpA (C-18/17, Nov. 14, 2018, ECLl:EU:C:2018:904):
“Having regard to all of the foregoing considerations, the answer to the second question must be that Articles 56 and 57 TFEU must be interpreted as meaning that a Member State is not entitled to require that third-country nationals posted to an undertaking established in another Member State by an undertaking also established in that other Member State for the purpose of providing a service in the first Member State have a work permit.”
If you have any questions, please don’t hesitate to get in touch. At work supply we are happy to help.
