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Van der Elst Visa

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The Van der Elst visa is a specific work visa type available for non-EU workers hired by an EU-based employer and who must be posted to another EU member state for a limited period of time, to provide services.

Van der Elst Visa meaning

The Van der Elst Visa originates from a judgment of the Court of 9 August 1994 relevant to a proceeding pending between Mr. Raymond Vander Elst and the Office des Migrations Internationales (OMI), regarding the interpretation of Articles 59 and 60 of the EEC Treaty.

The Van der Elst case

The case questioned some EU rights such as the freedom to provide services, the principle of non-discrimination and the access to employment for workers from non-member countries. Specifically, Mr. Vander Elst was an employer of Belgian nationality, established in Belgium, who operated a business in Brussels and used to employ Moroccan nationals, who legally resided in Belgium holding Belgian work permits and who were salaried in Belgium and therefore covered by the Belgian social security.

In 1989, Mr. Vander Elst carried out a service in France. The work lasted one month and involved a team of workers who were regularly employed by him, among them some Moroccan employees. For such employees, Mr. Vander Elst had previously obtained a short-stay visa from the French consulate in Brussels.

However, when French labor inspectors checked the working site, they complained that the Moroccan workers did not have work permits issued by the French authorities. According to the labor inspectors, the short-stay visa was not enough to allow them to take up employment in France. Therefore, the labor inspectorate considered that Mr. Vander Elst had violated the French law and fined him according to the local law disposition.

Verdict

Mr. Vander Elst then lodged an appeal to the decision by the French authorities and, in support of his actions, the claimed that the French Labor Code constituted a barrier to the freedom of service provision, which was incompatible with Articles 59 and 60 of the EEC Treaty.

In answer to the questions referred, the court rules the following:

“Articles 59 and 60 of the EEC Treaty must be interpreted as precluding a Member State from requiring undertakings which are established in another Member State and enter the first Member State in order to provide services, and which lawfully and habitually employ nationals of non-member countries, to obtain work permits for those workers from a national immigration authority and to pay the attendant costs, with the imposition of an administrative fine as the penalty for infringement.”

Therefore, the case’s verdict confirmed that non-EU citizens employed in an EU member country are allowed to provide services in another EU country, for a limited period of time.

Implementation into EU member states law: Ireland and Italy as an example

Some EU country have implemented the principle of freedom established by the Van der Elst ruling in their own national law, in different ways. For instance, Ireland gives non-EU citizens the possibility to apply for a Van der Elst visa directly at the Irish diplomatic representation in the applicant’s country of origin or residence.

Italy, instead, has a dedicated “Van der Elst” work permit authorization provided for by the Italian Immigration Law through article 27, paragraph 1-bis of Legislative Decree 286/98. Such work permit is specifically intended for non-EU workers posted by EU companies to provide services under a service agreement and is allowed outside the quotas established each year by the Italian government, in line with the principle of freedom established by the Van der Elst ruling.

Notification of posting: Italy as an example

Besides the work permit authorization application, the Italian law foresees several posting notification fulfillments in line with the transposition of Directive 2018/957/EU into Italian law.

Companies posting workers to Italy in the framework of a service provision have to:

  • Submit a declaration of posting;
  • Appoint a domiciled contact person;
  • Comply with the applicable Italian salary / working conditions;
  • Keep and store all the documents related to each assignment in case of a formal request of information by the local authorities.

Who is eligible for the Van der Elst Visa?

Are eligible to apply for the Van der Elst visa those citizens who fulfill the following conditions:

  • Are lawfully resident in the EU member state where their employer is established;
  • Are lawfully employed by the employer in the sending EU member state;
  • Travel to another EU country to provide services on behalf of their employer, based on a service agreement in place between the employer and the host company.

Normally, the Van der Elst visa does not allow to undertake paid work in the destination country or to undertake unpaid work different from that for which the visa has been approved. When the provision of services is completed, the worker must leave the country.

Dependent family members are usually not eligible to join the applicant who applied for a Van der Elst visa, but they can always enter the destination country as visitors.

Documents and processing time for the Van der Elst Visa

Among the documents usually required for a Van der Elst visa, there are the following:

  • Passport;
  • Passport sized pictures;
  • Application letter;
  • Confirmation of residence and employment in the EU home country;
  • Letter by the host company and/or service agreement between the sending company and the hosting company.

All the documents that are issued in a foreign country must be correctly legalized and translated, according to the applicable regulations and reciprocal agreements between the relevant countries.

The Van der Elst visa can usually be applied up to 3 months before the intended date of travel, though this may vary according to the destination country. Processing time may be different according to each country, for this reason it is usually not advisable to purchase travel tickets in advance.

The duration of the visa granted also differs from country to country. As an example, the Irish Van der Elst Visa allows stays for a maximum of 12 consecutive months. The Italian permit, on the other hand, can be released for up to 2 years, renewable.

Learn more about other types of Italian work visas in our complete guide on Italy Work Visa

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Regulatory Framework

Court Judgment of 9 August 1994

Reference

Legislative Decree 286/98

Reference

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