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EU States may require residence permits for non-EU workers posted to their territory

The European Court of Justice has ruled on a case concerning a rejection to issue temporary residence permits to carry out work activities in the Netherlands.

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Case C 540/22 is a request for a preliminary ruling submitted by the Hague Tribunal, Middelburg branch, in the Netherlands, concerning the interpretation of Articles 56 and 57 of the TFEU. The dispute involves 44 Ukrainian workers, posted by a Slovak company to perform a service for a Dutch company, and the Dutch Secretary of State for Justice and Security. It arises from the rejection by the latter, considered unfounded by the applicants, of the issuance of a temporary residence permit for cross-border service provision purposes.

The Facts

  • The applicants, Ukrainian citizens, were posted to the Netherlands by the Slovak company ROBI spol s.r.o. to carry out a provision of service in the port of Rotterdam for the Dutch company Ivens NV. 
  • The Slovak company notified the Dutch authorities of the activities and durations of the postings. 
  • The Ukrainian workers also held temporary residence permits issued by the Slovak authorities. 
  • According to Dutch law, after the expiration of a 90-day period, the Ukrainian workers were required to obtain a Dutch residence permit. 
  • Initially authorized until November 21, 2020, with Slovak temporary residence permits, the duration of their posting was extended until December 31, 2021. Despite this, the Dutch authorities limited the validity of the workers’ residence permits to the duration of the Slovak permits, prompting complaints about the fees and permit validity. After several refusals of the objections raised by the Ukrainian workers, the matter was brought before the court. 
  • Subsequently, faced with complaints from the Ukrainian workers, the Dutch court decided to refer some preliminary questions to the Court of Justice. It wanted to know whether Dutch regulations were compliant with the free provision of services in the European Union. 

The Decision of the CJEU

The Court concluded that Article 56 TFEU does not prevent the application of a Member State’s legislation whereby: 

  • The validity of a residence permit issued to a third-country national worker posted to that Member State cannot exceed a duration determined by that national legislation, which may thus be shorter than necessary for the service provision. 
  • The duration of validity of such a residence permit is limited to that of the work and residence permit held by the individual in the Member State where the service provider is established. 
  • The issuance of such a residence permit requires a fee higher than that for a regular certificate for a UE citizen, provided that the initial duration of validity of the same permit is not manifestly too short to meet the needs of most service providers. 

It follows, therefore, that the provision that the validity of the granted residence permits does not exceed a certain duration, determined by national legislation, is not in itself contrary to Union law. 

The fact that a Member State limits the validity period of residence permits issued to third-country nationals posted to its territory to the duration of the work permits they hold in the Member State where the service provider is established cannot be considered a violation of the latter’s freedom to provide services.  

Finally, regarding the complaint that posted workers raised about the excessive cost for obtaining a residence permit in the Netherlands, significantly higher than the cost of a residence permit for a UE citizen, it was concluded that this fact in itself is not sufficient to demonstrate that the amount of such fees is excessive or unreasonable and, consequently, violates Article 56 TFEU, but is purely dictated by the cost expenses that the Dutch government incurs for issuing such a residence permit. 

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Regulatory Framework

Case C-540/22


Learn more about Posting of Workers to Europe

Have a look at our in-depth guides about Posting of Workers to EU Countries. If you don’t know where to start, you can have a first look at our introduction on Posting of Workers to Europe.

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