Posting third country nationals – what rules should you take into account?

1. What is “Vander Elst exemption“?

In 1994, in the so-called « Vander Elst » ruling, the European Court of Justice ruled that a country may not impose a permit requirement on third-country nationals posted by an employer based in the European Union. This is because the free movement of services applies in the European Union and imposing such a permit was seen as a restriction thereof.

Specifically, the European Court of Justice states the following (example): if an employer is established in France, this French employer may post its staff to a project in Belgium, even if some of the employees are not EU citizens. In this case, Belgium may not require the third-country national to apply for a residence and/or work permit.

As a result of this ruling, European Union member states had to adapt their legislation and grant an exemption for this specific group of third-country nationals.

The « Vander Elst exemption » means that third-country nationals posted to Belgium from a European Union member state are automatically granted admission to the labour market if the following conditions are met:

1. The third-country national is employed by a company established in a member state of the European Economic Area (EEA) or Switzerland;
2. The third-country national comes to Belgium to perform services on behalf of his employer;
3. The third-country national has a right of residence valid for more than three months in the Member State of residence;
4. The third-country national is lawfully employed in the Member State of residence and holds a valid employment contract;
5. The work permit in the Member State of residence is valid at least for the duration of the work to be performed in Belgium;
6. The third-country national has a passport and a residence permit with a period of validity at least equal to the duration of service in Belgium. This ensures the return to the country of origin or Member State of residence.

If these conditions are met, these persons, together with EU citizens, may move freely across European borders to come and work in Belgium.

2. Practical application of the exemption

Although third-country nationals posted to Belgium under the « Vander Elst exemption » do not have to apply for a residence permit, work card or single permit (in case of long stay), some other formalities still need to be completed.

2.1          GENERAL CONDITIONS REGARDING POSTING

Obviously, for third-country nationals travelling to Belgium under the « Vander Elst exemption », the same rules and regulations must still be complied with as for other posted workers: including having an A1 document and LIMOSA declaration, applying minimum employment and wage conditions, etc.

2.2          VISA EXEMPTION

The « Vander Elst exemption » can only be applied if the posting is carried out from another EU Member State.

In that case, the third-country national is presumed to have a valid right of residence in the Member State from which they are to be posted. Consequently, no visa is required to enter Belgium. The residence permit of the third-country national in the EU member state gives the right to free movement.

Note: the visa exemption does not apply to a posting from outside the European Union.

For example: an Indian company posts its employees to Belgium for a 6-month project. They will not only have to apply for work and residence permits, but also for a visa.

2.3          MODALITIES UPON ARRIVAL IN BELGIUM

The third-country national is obliged to report to the municipality of residence within 3 working days of arrival on the Belgian territory. For EU citizens, this reporting obligation applies within 10 working days. If the workers are staying in a hotel, a guesthouse, a camping site or a youth hostel, they are exempt from the notification obligation as long as the stay is limited to 90 days.

This arrival notification is particularly important for third-country nationals. If they fail to comply with these formalities, they are presumed to be staying in Belgium illegally. It is therefore very important for Belgian clients to verify that the declaration of arrival has been fulfilled.

2.4          CHANGE OF STATUS FROM SHORT STAY TO LONG STAY

If the Belgian project has a (probable) duration of more than 90 days, the third-country national must apply for a change of status for long-term residence after their notification of arrival to the municipality. This is done by applying for a so-called A-card.

The electronic A-card gives the third-country national a temporary right to work and reside in Belgium. The A-card has to be renewed between the 40th and 30th day before its expiry date.

3. To keep in mind

Foreign companies posting non-EU citizens to Belgium to carry out a project or Belgian companies using foreign service providers should definitely keep the following items in mind:

1. Step 1: always check whether third-country nationals will be employed by the foreign service provider;
2. Step 2: request documents proving that the 6 conditions for the Vander Elst exemption have been met;
3. Step 3: if you establish that Vander Elst exemption does NOT apply (e.g. subcontractor is not established within the EEA or Switzerland) – check whether the employees have a Belgian work and residence permit.
4. Step 4a: if you establish that Vander Elst exemption DOES apply, request a copy of the « bijlage 3ter » before the works start. This will verify that the workers have effectively reported to the municipality;
5. Step 4b: is the project (unexpectedly) lasting longer than 90 days? As the client, inform the service provider and request a copy of the « bijlage 15″/ »A-card » in time.

More questions about posting workers? Or would you like to be guided when starting up foreign activities? If so, be sure to contact one of our experts at Van Havermaet.