Van der Elst:

Work Permit Exemptions Within the EU

Host: Sophy King (Peregrine)

Speakers:

BELGIUM: Bernard Caris (Praetica)

FRANCE: Fiona Mougenot (Expat Partners)

IRELAND: Claire Jacobs (Corporate Care)

ITALY: Marco Mazzeschi (Mazzeschi)

SPAIN: Mounia Jrabi (Sagardoy)

SWITZERLAND: Friederike Ruch (Convinus)

And special guest….AREND VON ROSMALEN from Netherlands (Mynta Law)

Speakers

Van der Elst Background

• Result of case ruling in 1994

• Raymond Van der Elst had a demolition business in Belgium; sent Moroccan nationals to France but got in trouble after an inspection because they didn’t have work permits. He held that they didn’t need them because they were providing services; the EU Tribunal agreed.

Van der Elst – Where is it used?

• VDE has never been formally put in place via an EU directive, so it’s a result of case law and can therefore, technically, be argued case by case anywhere in the EU

• The question therefore is not - *can* you use it but more – is it helpful to use it? Or will it be more trouble than it’s worth?

Van der Elst – Common Problems

• Consulates don't understand it or like it

• Nor do host authorities issuing residence permits

• Different EU states interpret the rules differently

• Definition of “service provider” can be tricky

• Different qualifying criteria

• Dependents may not be permitted

• Can be issued for very limited duration

Let’s take a look

Belgium: Criteria

• Provision of services by sending EEA company: no legal time limitation;case-by-case assessment

• Legal residence (> 3 months) of employee in EEA Member State ofresidence: passport and residence permit (> 3 months), valid for durationof work in Belgium

• Lawful employment of employee in EEA Member State of residence: workpermit, valid for duration of work in Belgium, and regular employmentcontract

• No requirement for specific seniority of employee with the EEA sendingcompany

Belgium: Process

Entry:

• Employee with Schengen residence permit: no visa required (regardless of length of stay)

• Employee with non-Schengen residence permit: visa required

Short term assignment (< 90 days):

• declaration of arrival with municipal authorities within 3 working days of entry to Belgium (exception: hotel)

Long term assignment (> 90 days):

• registration with municipal authorities within 8 working days of entry to Belgium

Belgium: Documents

Work permit exemption: sending EEA company/employee must be able to prove that Van der Elst exemption applies (no certificate of exemption) in the event of visa application or audit

Documents:• Assignment letter: direct contract between sending EEA

company and Belgian account (interpretation by most authorities)

• Work permit and employment contract• Residence permit and passport• A1 form (social security)• LIMOSA (on line notification with social security

Belgium: Problems in Practice

• Interpretation of “provision of services”: mostauthorities require that work in Belgium is performedon basis of direct contract between sending EEAcompany and Belgian account

• Difficulties with long term residence registration:challenging to convince municipal authorities thatwork permit exemption applies

• Signed service agreement between the EU company that is the employer and the client in France – this is for an agreed service not to exceed 2 years

• Employee:– Must be employed by company in the EU

– Must have an employment contract with the company in the EU

– Must be on the payroll of the EU company and have social security coverage (A1 certificate) from that EU country

– Must have a work permit for the EU « home country » that remains valid for the full length of the assignment in France

France: Criteria

Short Term Assignments (up to 90 days) • No visa required if applicant is a visa waiver national or has a valid Schengen

residence permit• No residence permit

Long Term Assignments (over 90 days)• Visa required for all nationalities, unless holder of valid Schengen residence permit

– and even then, recommended• On arrival in France the employee must apply for a French residence permit• Application is filed at the Préfecture with jurisdiction for the employee’s personal

address

France: Process

For all assignments:• A1 form from home country’s social security authority required• Prior detachment declaration must be filed at least 2 working days prior to the

employee’s start date of assignment in France • The host company (client) in France is required to register the assignee in their

personnel register

Short Term:• Assignment letter• Copy of the employee’s passport, EU work permit, A1 form should

be sent to the « host » company’s HR managerLong Term:• Assignment letter• Copy of the employee’s passport, EU work permit, A1 form should

be sent to the « host » company’s HR manager• Préfecture can be difficult when there is no long stay visa therefore

we highly recommend that for ALL long stay assignments a visa application is filed at the French Consulate in the EU « home » country

• The application for the residence permit requires an original birth certificate with certified translation

France: Recommendations

The employee must:• have the appropriate working and residing permission in

another EU member state and be able to show proof of same• remain on employed and paid by the employer in the sending

EU country. They cannot be on assignment in the EU state (ICT or equivalent)

• be coming to Ireland to provide services on behalf of their employer.

• return to work in the sending EU Member State following completion of the project in Ireland.

• have proof of medical insurance for duration of stay in Ireland.

• There is no minimum period that the employee has to have been working and residing in sending EU member state.

Ireland: Criteria

• Can only be granted for a maximum of 1 year, or less, depending on the expiry date of residence permit from EU state.

• Family members cannot accompany employee, except as visitors.

Ireland: Duration and Family

• Ireland is not part of Schengen Zone

• Visa requiring nationals will require a Van Der Elst Visa (Long stay D employment Visa over 90 days) to enter Ireland.

• Visas are obtained from Irish embassy in EU country of residence (timing approx. 2-8 weeks)

• Non-visa requiring nationals enter and present number of documents to immigration officer at port of entry.

• For all: if staying in Ireland over 90 days must register residency and obtain residency permit “GNIB card”

Ireland: Process

• The employee must be hired by an EUcompany and must have a valid permit of stay.

• No specific seniority with the sendingcompany is required.

Italy: Criteria

• Visa is mandatory for ALL non-EU nationals (regardless oflength of stay) who do not have a residence permit issued bya Schengen state

• No work permit required

• Italian company must send a online notice to the ImmigrationOffice.

• Within 8 days of entry to Italy, the employee will need toexecute a Contract of Stay at the Immigration Office andobtain the Permit of Stay from the Police Office.

Italy: Procedure

• Posting cannot exceed 4 years. If posting is for more than 1year, it must be checked whether or not the worker canmaintain the permit of stay in the EU country of origin.

• Family members (wife and children younger than 18) areentitled to a family permit of stay. The holder of a familypermit can work in Italy without a separate work permit.

Italy: Duration and Family

• The ruling was implemented in Italy in 2007 with Law46/2007. However, it has never been fully implemented.

• For workers coming from a Schengen country (who do notneed a visa), the Police – alleging that the individual does nothave the “necessary” work visa – may refuse to issue thepermit of stay.

• For workers coming from a non-Schengen country (forexample UK), the on-line system does not allow these kind ofapplications and therefore Immigration Offices cannot sendthe required on-line notice to the Consulates and the visacannot be issued.

Italy: Problems in Practice

Spain- Requirements

Assignee

• Hold local hire work permit by an EU/EEA country, valid for at least period intended in Spain

• Locally hired with company located in EU/EEA, during assignment

• Must maintain employment, SS and payroll with this entity.

Companies

• Intra company transfer or service provider route OK

• Sending entity must guarantee minimum labour conditions as in Directive 96/71 (Act 45/99)

• Prior communication to Labour Authorities of transfer MUST be done

Spain - Process

Short Term Assignments (up to 90 days)

• No visa required if applicant is visa waiver or has a valid Schengen residence permit

• Entry must be reported within 3 days (art. 13 557/2011)• No residence card/permit

Long Term Assignments (more than 90 days)

• Residence visa and residence permit required

• Residence card required if staying longer than 6 months

Spain – Duration and family

• Maximum initial validity of authorisation= 1 year• Extensions available for periods of 1 or 2 years.

From immigration point of view= no time limit

Family: • Short term assignments: Short stay visitor visas

for up to 90 days• Long term assignments: Residence permits as

dependents or independently (no reunified status)

Spain – Red flags

• Labour Inspection will take place after filing communication of transfer

• Work cannot start without valid A1 (social Security certificate) and communication of transfer

• Common process but still some Consulates may be ignorant of the process.

Switzerland – General Comments

• Van der Elst – is not applicable as Switzerland is not an EU member state

• Assignment to Switzerland for providing services in SwitzerlandWork permit always required except for 8 days per calendar year (in total).Conditions:

1. Specialist or management position required2. 12 months’ employment with the employer abroad3. Remaining in employment while on assignment4. Payment of Swiss equivalent salary, plus accommodation, food and travel

to Switzerland and return, but also in Switzerland• Entry visa required for all non-EU/EFTA nationals except Singapore, New Zealand,

Malaysia and Japan nationals• Different process for assignments up to 90 days / 120 days or 4 months / longer• Work permits are subject to a quota if the assignment takes longer than 4 months• No possibility to get a cross-border permit for assignments (live in a neighbouring

country and work in Switzerland without an employer in Switzerland)

26 different cantons with almost 26 different processes – 3 applicable languages

Switzerland

Switzerland – Categories

Work quotas 2015 for EU25/EFTA nationals

• L permit (above 4 months): 2000

• B permit: 250

Work quotas 2015 for EU2 and other nationals

• EU2: separate work quota• All other nationals: L permit –

4000 quota and B permit –2500 quota

Different categories ofnationals – relevant in

Immigration• EU 25: Austria, Belgium, Cyprus,

Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hunbary, Italy, Latvia, Lithunia, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, United Kingdom

• EU 2: Bulgaria and Romania

• EFTA: Iceland, Liechtenstein, Norway

• Other nationals (incl. Croatia)

Switzerland: RULES for short term work assignments

Up to max. 90 days Up to 120 days / 4 months

Period • In a calendar year • In a 12 month period

Process time • 8 days • 2-4 weeks (EU25/EFTA) / 6-8

weeks (all other nationals)

Valid for the following nationals • EU25 / EU2 /EFTA nationals and

other nationals subject to 12

months being resident in an

EU/EFTA member state

• All nationals

Conditions • Swiss salary level and Swiss labour

market conditions

• Swiss salary level and Swiss labour

market conditions

Additional costs to be covered • Travel, food, accommodation • Travel, food, accommodation

Work days • have to be announced 8 days in

advance

• No need to announce

Quota? • No • No

Restrictions • employer has 90 days to send

employees to Switzerland and

individual employee can only work

for up to 90 days in Switzerland

• None

Netherlands:Van der Elst Criteria

• Non-renewable residence permits available for up to 2 years.

• Applicant is employed by service provider established in EU/EEA member state.

• Applicant holds valid residence and work permit in EU/EEA member state for the duration of the assignment.

• Notification made to the Ministry for Social Affairs and Employment.

- Notification of all addresses where work will take place in NL.

- Notification whether service consists of the “making available of workers”.

• Confirmation of receipt notification used to give no assurance of legality.

• Much emphasis on daily Direction and Control excercised over personnel.

• Chain liability. Heavy administrative fines: € 12.000,- per employee.

• Employer means: a person who, in the exercise of an office, occupation or business, has work carried out by another.

Netherlands:ECJ Judgment 11 Sep. 2014 (C-91/13)Essent Energie Productie BV v. Minister van Sociale Zaken en Werkgelegenheid

Facts and Procedure• Construction of complex scaffolding at a power plant facility in NL.

Princ. Essent Energie Productie B.V. established in NL

Contr. BIS Industrial Services Nederland B.V. established in NL

Subcon. Ekinci Gerüstbau G.m.b.H. established in DE

• 33 third country nationals (“TCN”) were in employment of Ekinci, posted to assignment with BIS.

• Direction and control: BIS personnel. No work permits. Essent fine: € 264.000,-.

ECJ Ruling• Making workers available = service. TCN circumstance = irrelevant (par. 37 – 40);

• Fact that Essent is not direct recipient of service also irrelevant (par. 40 – 42);

• Work permit requirement = disproportionate. Notification requirement capable of sufficiently serving general interest (par. 56 – 57).

Netherlands:ECJ Judgment 11 Sep. 2014 (C-91/13)Essent Energie Productie BV v. Minister van Sociale Zaken en Werkgelegenheid

Conclusions

• NL legislation will be altered – notification procedure will (probably) be imposed for all service providers

• Making available of TCN on assignments in NL = much greater legal certainty.

Conclusions

• Some criteria are standard and established – having residence in another EEA country; maintaining employment contract and social security in that country; being able to return to that country after the end of the assignment

• Some aspects vary – whether or not visas are required may depend on nationality, duration of stay and also on current country of residence (Schengen or not)

• Some countries, although in theory recognising the VDE, in practice make it almost impossible to apply using this route (e.g. Italy). In others, it’s quite common (Spain) and in others, it can be a useful option (e.g. France).

• Recent ruling in the Netherlands (Essent Energie) not only defines criteria more clearly but also raises the profile of this type of application and the chances of it being approved

• The issues with VDE tend to fall into the “haven’t seen this before so I can’t approve it” category: it doesn’t work because people don’t use it. Essentmay change that.

Questions?

Sophy King at Peregrine Immigration Management Ltd sophy@peregrine.im

• BELGIUM: Bernard bc@praetica.com

• FRANCE: Fiona fmougenot@expatpartners.com

• IRELAND: Claire claire@corporatecare.ie

• ITALY: Marco mm@Mazzeschi.it

• SPAIN: Mounia mj@sagardoy.com

• SWITZERLAND: Friederike fruch@convinus.com

And special guest:• NETHERLANDS: Arend vanrosmalen@mynta.nl