• Federal Government Confirms Van der Elst Program Does Not Require Local Employment Contracts for Employees
  • February 4, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Local employment contracts should no longer be required for third-country nationals seeking to enter under Van der Elst rules, German officials have confirmed. These individuals should at all times remain under the full managerial control of the host entity to which they are assigned outside of Germany.

    The Van der Elst process derives from a 1994 ruling by the European Court of Justice. Generally, a non-EU national who is employed by a company in one EU country may provide services to a company in another EU country for a limited period without the need for a separate work permit.

    In the past, German authorities would require third-country nationals seeking to use the Van der Elst process to provide a local employment contract with the Germany company that would receive the services. However, officials from the Federal Ministry of the Interior, Federal Ministry of Labor and Social Affairs and Federal Foreign Office recently confirmed in discussions with Fragomen Germany that local employment contracts should not be required, in accordance with the spirit of the ruling.

    To use the process, third-country nationals typically obtain a Van der Elst visa from a German diplomatic post. As of June 2013, Van der Elst visas are not required of visa-exempt third-country nationals if their total stay in Germany will not exceed three months within one year and if they hold a long-term residence permit issued by an EU member state and in accordance with EU directive 2003/109/EC.

    What This Means for Employers

    This change makes it easier for EU employers without German locations to provide services to companies in Germany. Employers should note that though confirmed by federal officals, this change has likely not been communicated to all German consular posts and local alien offices. Third-country nationals planning to use the Van der Elst process without a local employment contract should be prepared for close questioning.