Sometimes it’s believed that an employer who wants to second to Germany a worker from a third country, e.g. from Ukraine, doesn’t need to obtain any additional visas or permits. This view is wrong. German provisions require obtaining a special visa – the Vander Elst visa – for such an employee.
1. Famous verdict
The name “Vander Elst visa” refers to the famous judgment of the Court of Justice of 9 August 1994, in the case: Raymond Vander Elst v. Office des migrations internationales, ref. file: C-43/93.
Raymond Vander Elst ran a demolition company in Belgium. He employed Belgian and Moroccan nationals. The Moroccan nationals employed by him resided in Belgium, had a Belgian work permit and were covered by the Belgian social security system.
Mr Vander Elst’s company was commissioned to carry out demolition work on a building in France. They were supposed to last one month. In order to perform the contract, Mr Vander Elst sent a team of employees consisting of Belgians and Moroccans. However, visas for temporary stay in France were obtained for Moroccans.
During the inspection, the French labour inspectorate accused Mr Vander Elst of posting Moroccans without work permits in France and imposed an administrative penalty on him. The sanctioned person appealed against the penalty and the case went to the ECJ.
After analysing the circumstances of the case, the Court delivered a judgment in the justification of which it formulated a thesis that is extremely important for the freedom to provide services. Indeed, it stated: „[…] [Articles 56 and 57 TFEU] shall be interpreted as precluding a Member State from requiring undertakings established in another Member State and traveling to its territory with the intention of providing services and which regularly and habitually employ third-country nationals to obtain work permits for those workers […]”
2. Why a Vander Elst visa shall be obtained?
An employer posting a third-country national from an EU country (e.g. Poland) to Germany, who is subject to the visa requirement in the country of secondment, should obtain a visa for this worker, called the Vander Elst visa. On its basis, the posted employee is entitled to work in Germany for the period during which the service is to be provided. In other words, the Vander Elst visa allows a third-country worker to be posted to Germany from another Member State to provide services for a limited period of time.
3. Conditions for obtaining a Vander Elst visa
The basic condition for obtaining a Vander Elst visa is that the employee to be seconded has a residence and work permit. According to the information obtained from the German Embassy, the worker should hold a residence card or a long-term visa.
The foreigner should also have an employment contract with a Polish employer, be registered for social insurance and have paid social insurance contributions. It should be emphasised here that the provision of work in Germany can’t be the only purpose for which a third-country employee is engaged by a Polish employer. It’s necessary that both before and after the posting, the employee provides work in the EU country from which he/she is seconded.
The employer should have a contract on the basis of which he/she undertook to provide services in Germany. Therefore, there must be an agreement justifying the secondment of the employee to work in Germany. It’s also extremely important that the provision of services takes place under the sole responsibility of the posting party.
It should be emphasised that the Vander Elst visa doesn’t apply in the case of posting workers within the same enterprise, i.e. the temporary secondment of an employee to a subsidiary of a given company in Germany.
4. How to obtain a Vander Elst visa?
The Vander Elst visa is issued at the request of the foreigner to be seconded. The German Embassy in Warsaw constitutes the only place where it’s possible to submit the application. Other units, i.e. Consulates General of the Federal Republic of Germany in Kraków, Wrocław and Gdańsk, don’t deliver visas. Consulates General of the Federal Republic of Germany in Kraków, Wrocław and Gdańsk, don’t deliver visas.
The visa application shall be submitted in person. For this purpose, it’s necessary to book an appointment via the online appointment booking system.
The presentation of a complete set of documents constitutes the condition for accepting a visa application. Indeed, submission of an incomplete set of documents may be a ground for refusal of such a request.
The visa applicant should present the following documents:
- 2 accurately completed in German and hand-signed applications;
- 2 recent biometric photos;
- a passport with a sufficiently long period of validity (at least 6 months after the date of expiry of the residence permit), issued within the last 10 years;
- an appropriate document confirming residence and work permit in Poland with an expiry date allowing return from Germany to Poland at the end of the provision of service;
- a current certificate of registration in Poland for at least 4 weeks;
- an agreement between the posting enterprise and the recipient of services operating in another EU country;
- a certificate of the posting company made in 2 copies (separate for each applicant in the case of submitting a group application) and containing the following data:
– information on the applicant’s employment in accordance with the provisions (employment contract, salary settlement, certificate of payment of social security contributions),
– the expected start and end time of the service in Germany,
– place of performance of service in Germany,
– a brief description of the service provided;
- proof of sickness insurance in Poland and Germany for the duration of the secondment (A1 document + EHIC card).
Documents should be arranged in the order indicated above. Moreover, each of them shall be submitted in the original together with two copies.
The German Embassy reserves the right to request additional documents on its website. In practice, this usually takes place in the event that doubts or ambiguities arise.
A fee of approximately PLN 400 (equivalent to EUR 75, depending on the current exchange rate) is charged for processing the Vander Elst visa application. The fee shall be paid when submitting the visa application in cash, in the Polish currency. If the grant of visa is refused or the request is withdrawn, there will be no refund of the fee paid.
The decision on granting a visa is issued – more or less – within 7 working days. If it is positive, relevant information is sent by e-mail. A negative decision is sent by post.
The Vander Elst visa is issued for the duration of the provision of services.
5. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 o prawie autorskim i prawach pokrewnych (Dz.U. z 2006 r. nr 90 poz. 631, t.j. z późn. zm.). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
