As of September 16th, 2024, Germany has introduced various cross-border controls with neighboring Member States, including the reestablishment of controls on the non-EU nationals posted to the German territory in the context of a transnational provision of services.
The Federal Ministry of the Interior and the Community has implemented these measures to further limit irregular immigration and to protect Germany’s internal security. Land border controls with France, Luxembourg, the Netherlands, Belgium and Denmark will be reintroduced for a period of six months. This is in addition to the controls already in place at the Austrian border, which will remain in effect until November 11th, 2024, and at the Swiss, Czech and Polish borders, that will remain in effect until December 15th, 2024.
The Schengen Agreement
The reintroduction of controls draws attention to a cardinal principle of European law: the Schengen Agreement. According to Article 21 of the Schengen acquis, foreigners holding a residence permit issued by one of the Contracting Parties may, on the basis of that permit and a valid travel document, move freely for a period not exceeding three months within the territories of the other Contracting Parties, provided that they fulfil the entry conditions referred to in Article 5(1)(a), (c) and (e) and are not on the national list of alerts of the Contracting Party concerned.
In accordance with the Convention implementing the Schengen Agreement (CISA), a foreign national holding a valid residence permit issued by a Member State and a valid identity document may move freely within the Schengen area for a maximum period of 90 days within a 180-day period. Such periods are specifically the sole responsibility of the host Member States.
Find more information in our guide on the Schengen Visa.
However, a general legal uncertainty persists due to the complex interoperability between European legislation and national practices, as the entry and stay of non-EU nationals on the territory of a Member State in the context of transnational posting has not been subject to the harmonization at the European legal level.
The Van der Elst principle
In the context of transnational posting, the Court of Justice ruled in the Van der Elst case that an EU Member State cannot require companies established in another Member State to obtain a work permit for their non-EU workers who are legally and habitually employed and posted solely for the purpose of providing services.
In any case, each Member State applies the Van der Elst principle according to different interpretations. Another area of confusion is the concept of the “habitual place of work”, which each Member State interprets from its national perspective.
Germany’s approach to the Van der Elst principle
In the specific case of Germany, the national approach to the Van der Elst principle is difficult to summarize. In general, only workers with long-term residence permits are exempted from the Van der Elst principle for postings not exceeding 3 months within a 12-month period.
Considering the above, it is safe to say that there are no general or specific legal guidelines that clearly regulate the posting of non-EU nationals within the European Union. Therefore, a prior assessment is always considered necessary in such cases.