Global Mobility – EU Challenges Germany’s Visa for Non-EU Workers

The European Commission announced on 30 January that it had started an infringement procedure against Germany. The European Commission sent a letter of formal notice requesting further information to Germany, which must send a detailed reply within a specified period, usually 2 months.

Facts and Issue

Germany requires non-EU nationals who already hold a residence permit or long-stay visa from another EU country to apply for an extra visa before being posted to Germany for short-term assignments.

The Commission argues that this measure imposes an unjustified restriction on the freedom to provide services, creating unnecessary administrative burdens and delays for companies and workers

Legal Background

Article 56 of the Treaty on the Functioning of the EU (TFEU) and Article 21 of the 1990 Convention implementing the Schengen Agreement (CISA) : Service providers are permitted to post non-EU nationals—who are lawfully staying and employed in one EU member state—to another EU member state for up to 90 days in any 180-day period, without requiring an additional visa.

Case C-43/93 Vander Elst v. Office des migrations internationals: Non-EU nationals legally residing and working in one EU member state can be posted for a short period of time to another member state to provide services without having to obtain an additional visa, provided they already hold a valid residence permit.

Impact

If the European Commission decides to continue the infringement procedure after Germany’s response, the European Commission will request Germany to comply with European Law.

Germany will thus have to remove the requirement for an additional visa for non-EU legal residents in the EU. If Germany does not comply, the European Commission will bring it in front of the Court of Justice of the European Union.

The procedure could thus take a few months to a few years.

It is therefore important to monitor the developments of this procedure, to continue to follow Germany’s current rules at the moment, and be ready to adapt to the new rules for postings planned.