Is it different than posting a EU National?
Is there any substantial difference between posting a EU national and a non-EU national?
Though many may find it surprising, the short, simple and honest answer is NO – there is really NO significant difference whatsoever.
The workforce contract, rules, regulations, process, procedures, documents required, rights, obligations, responsibilities of all parties involved are identical – regardless of whether the worker being posted is a EU or non-EU national.
However, temporary staffing agencies, as well as their EU/EEA clients and workers posted abroad should be aware that if a non-EU worker posted abroad remains in the EU/EEA member state to where he/she is sent for longer than 90 days in any 180 day period, they are generally obliged to apply for a residence permit.
The authorities of a EU/EEA member state to which a non-EU worker is temporarily deployed is forbidden to demand a work permit, however the same does NOT apply with regard to a residence permit. Although interconnected, these permits are clearly distinct in nature. A residence permit is basically a permission to reside in a given national territory.
Posted non-EU workers do not require permission to live and work in other EU/EEA member states for the first 90 days of their stay within any 180 day period – but, if they stay longer a residence permit is required by virtually all EU/EEA member states.
In contrast, posted EU nationals are only required to register their residence with the relevant authority (often the town hall or local police station), and to be issued with a registration certificate if they remain in excess of 90 days. The act of registration is markedly distinct from the act of applying for a residence permit. Registration consists of a mere communication or the act of providing notice, while applying means requesting, in this case, permission to reside.
However, and perhaps more importantly, the application for a residence permit (in the Netherlands, for example, it is called a “cross-border residence permit”) is a mere formality, a pro-forma. It is an administrative act, not a discretionary “decision”. If the requirements are met and the proper documents and forms submitted, the residence visas will certainly be issued.
Our own temporary staffing agency, Work Supply, has applied hundreds of residence visa applications over the past 3-4 years and not once has any request been definitively rejected – although they are sometimes put on hold until missing documents are added or corrected. In fact, several EU directives and related documents emphasize that the request for a residence permit within the context of intra-EU posting should not create unnecessary burdens or difficulties for the requesting party and should be approved unless objective reasons exist to not do so.
EU and EEA – Two sides of the same coin
Throughout this article one has consistently implied that the realities being covered extend to both the European Union (EU) and the European economic Area (EEA).
This is because the Agreement on the European Economic Area, which entered into force on 1 January 1994, brought together the EU Member States and the three European Free Trade Association (EFTA) States — Iceland, Liechtenstein and Norway — into a single market, referred to as the Internal Market.
Although the EU and EFTA are unquestionably distinct political organizations, in practice, they are so closely intertwined and interconnected that it´s nearly impossible to distinguish where one ends and the other begins.
More importantly, within the context of this analysis, which examines matters concerning the rights and freedoms to provide services within a wider political and economic reality composed of a significant number of sovereign states within the European Union, there are really no borders and no significant differences regarding these rights and freedoms. For example, an employer in Norway (an EFTA country) has exactly the same rights and freedoms to provide services in any member state of the EU and the opposite is also true.
The intra-EU/EEA right of mobility of Non-EU or Third Country National (TCN) workers – Putting matters into context
Finally, it is important to note, because it is so often overlooked or misunderstood, that the right of Non-EU or Third Country National (TCN) workers to temporarily be posted and work in a EU/EEA member state other than the one that granted them a residence permit has nothing to do with the romanticized notion of equal rights that every individual is entitled to regardless of their nationality and status.
It has NOTHING to do with that!
The right of Non-EU or Third Country National (TCN) workers to reside and work outside the EU/EEA member state that issued them the residence permit stems from and is irremediably connected to the fact that they are under the employment of a EU/EEA moral or legal person (i.e. a company or an employer) and it is the right of this moral or legal person to provide services in any EU/EEA member state that consequentially extends to these workers the opportunity to temporarily reside and work outside the EU/EEA member state that issued them the right of residence.
Without the existence of this employment relationship a non-EU worker would not be able to legally reside and work in another EU/EEA member state.
We say “legally” because it is no secret that there are probably over a million (if not several millions) non-EU workers that are working illegally or clandestinely in Europe.
Hopefully this disquisition has shed some light on this controversial, complex, misunderstood and particularly relevant reality.
Do not hesitate to contact Work Supply if you have any questions or would like to learn more.
