Vander Elst visa for Germany
Find out everything you need to know about applying for a Vander-Elst visa for workers in Germany
Here you learn ...
what the Vander Elst visa is
All information about the Vander-Elst ruling of the European Court of Justice (ECJ)
what different types of Vander Elst visa there are
which documents are required for the Vander Elst visa
Author
Attorney
Reading Time
10 Min.
Release Date
17.01.2025
Table of Content
1. What is the Vander Elst visa?
2. What is the Vander-Elst ruling?
3. Vander Elst Visa Requirements
4. Vander Elst visa from Poland
5. Problems of temporary employment
6. FAQ Vander-Elst
1. What is the Vander Elst visa?
The Vander Elst visa plays a key role in the short-term posting of third-country nationals to Germany for cross-border service provision . Under certain conditions, companies based in an EU or EEA member state can post their workers to Germany without requiring approval from the Federal Employment Agency.
The Vander-Elst visa is particularly important for companies in the construction, IT, and mechanical and plant engineering sectors . The ability to send qualified workers from another EU country to Germany allows projects to be implemented more efficiently and cost-effectively, as even workers without formal qualifications can be easily transferred from one country to another.
This article describes the conditions for issuing the Vander Elst visa and the underlying ECJ ruling.
2. What is the Vander-Elst ruling?
The Vander Elst ruling of the European Court of Justice (ECJ) of August 9, 1994, represents a milestone for the cross-border provision of services in the EU. The case concerned a Belgian entrepreneur who wanted to post Moroccan workers to France to provide services there. However, the French authorities required a separate work permit, even though the workers were legally employed in Belgium. The ECJ ruled that such a work permit violated the freedom to provide services under Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU).
The basis for Vander Elst's posting is the freedom to provide services under Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU). This allows companies based in an EU/EEA member state to temporarily post their workers to another member state to provide a service. The prerequisite is that the workers are legally employed in the state of residence and that they are temporarily posted to Germany to provide a service ( Section 21 of the Employment Ordinance ).
The Vander Elst ruling laid the foundation for the current practice whereby companies from EU member states may temporarily post third-country nationals to other member states without requiring a separate work permit. It is thus an important cornerstone of European freedom of movement for entrepreneurs. To date, the ruling has been further refined through numerous subsequent rulings, resulting in a detailed body of case law on the Vander Elst visa.
3. Vander Elst Visa Requirements
A Vander Elst visa is issued if the following conditions are met:
The worker is legally employed in the sending country and holds a valid residence permit there. This means that the worker has an employment contract with a company based in the EU/EEA member state and is actually working there. The employment must be directed toward a main activity in the sending country and may not merely serve as preparation for the posting.
The posting serves the purpose of providing a cross-border service pursuant to Article 57 TFEU . This activity must be temporary and provided under a service contract between the posting company and a client established in Germany.
The work in Germany is temporary . The duration of the assignment may not exceed the maximum limits set out in the Residence Act and the Employment Ordinance. As a general rule, the maximum duration of the assignment is 90 days within a 180-day period. However, under certain conditions, long-term Vander-Elst assignments are also possible.
If the employee has long-term resident status within the meaning of Directive 2003/109/EC, the posting can even take place without a visa ( Section 30 No. 3 of the Employment Regulations , Section 17a of the Residence Regulations ). Otherwise, a Van der Elst visa must be applied for before entry.
4. Vander Elst visa from Poland
Intra-corporate postings of third-country nationals are particularly widespread in Poland, often within the framework of rotation systems lasting up to 18 months. In this case, employees are regularly exchanged between the country of residence and Germany in order to benefit from the employer-friendly working conditions in Poland. However, such intra-corporate rotation systems pose legal risks, as the Federal Administrative Court considers the Van der Elst regulations to be an abuse if the postings from Poland are merely intended to replace employees in Germany ( intra-corporate rotation systems ). In this case, the scope of application of the freedom to provide services is not applicable. Our lawyers would be happy to advise you on the legal limitations of a Van der Elst posting from Poland.
5. Problems of temporary employment
The temporary employment of employees within the framework of Vander Elst posting is generally permitted under the so-called group privilege . However, it may not be used to provide permanent workers. The decisive factor is legal employment in the country of residence. If there is no main activity in the posting country, the Vander Elst case law does not apply. Furthermore, the posting company must not be a letterbox company and must be able to demonstrate actual business activity in the posting country.
For further information on the temporary employment of foreign nationals, please refer to our VISAGUARD Guide to temporary employment under residence law .
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6. FAQ Vander-Elst
What is the Vander Elst visa and what is it needed for?
The Vander Elst visa enables companies from EU or EEA member states to send their third-country nationals to Germany without the need for approval from the Federal Employment Agency.
What is the Vander Elst visa based on?
The Vander Elst visa is based on the freedom to provide services under Articles 56 and 57 TFEU and is used in particular in the construction industry, the IT sector and mechanical and plant engineering to implement projects quickly and efficiently.
What are the special features of the Vander Elst visa from Poland?
Intra-corporate transfers of third-country nationals are common in Poland, but the use of intra-corporate rotation systems poses legal risks. The Federal Administrative Court considers transfers solely to replace workers in Germany an abuse of the freedom to provide services. Polish companies must therefore prove that the posted workers are actually employed in the country of residence and perform a substantial activity there.
