The Van der Elst visa

The Van der Elst visa is becoming increasingly sought after in the current global economy, which values international labor mobility. This visa provides a valuable opportunity for non-EU workers employed by EU-based companies to work in various EU member states. To fully understand this visa, it is important to explore its legislative framework, eligibility criteria, benefits, limitations, compliance requirements, and historical context. By doing so, one can grasp the complexities and opportunities associated with the Van der Elst visa. Overall, this guide aims to provide a comprehensive understanding of this visa and its significance in the modern labor market.

Understanding the Van der Elst Visa

The Van der Elst visa is specifically tailored for non-EU workers employed by EU companies who need to render services in another EU member state temporarily. This visa is based on EU legislation and court decisions, making it vital for individuals contemplating this option to have a comprehensive understanding of these legal aspects. By acquiring this visa, non-EU employees can work for a limited period in an EU member state different from their employer’s location.

A Glimpse into History

The Van der Elst procedure, as we know it today, derives from a 1994 ruling by the European Court of Justice (ECJ) that marked a significant milestone in the development of labor mobility within the EU. The case involved Mr. Raymond Vander Elst, a Belgian national, and the Office des Migrations Internationales (OMI). At the heart of the matter was the interpretation of Articles 59 and 60 of the EEC Treaty.

The ECJ’s ruling was groundbreaking. It affirmed the principles of freedom to provide services and the principle of non-discrimination within the EU. Specifically, it held that a non-EU national who is employed by a company in one EU country must be allowed to provide services to a company in another EU country for a limited period without the need for a work permit. This landmark judgment laid the foundation for the Van der Elst visa, enabling the temporary posting of non-EU workers within the EU.

Legislation and Court Precedents

EU Treaty Basis: The legal basis for the Van der Elst visa is rooted in the EU Treaty, particularly Articles 59 and 60 of the EEC Treaty. These specific articles outline the fundamental principles of freedom to provide services and freedom of movement for workers within the European Union. As a result, the Van der Elst visa serves as a mechanism for allowing employees of a company registered in one EU member state to work temporarily in another member state while benefiting from the free movement of services and workers.

European Court of Justice Ruling: The origins of the visa can be attributed to a 1994 ruling by the European Court of Justice (ECJ) that addressed the rights of EU companies to offer services within the EU. According to the ECJ, in order to uphold the principles of freedom to provide services and non-discrimination, non-EU nationals employed by a company in one EU country should be permitted to offer services to companies in other EU countries for a limited duration, without requiring a work permit. This ruling set the foundation for the visa’s implementation.

National Legislation: Each member state of the European Union has the freedom to enact its own national legislation and regulations regarding the Van der Elst visa. This visa concept is applicable across the EU, but the specific rules and requirements can vary from country to country. It is crucial to familiarize oneself with the particular regulations and procedures of the country where one intends to work. Being aware of these specific rules will ensure compliance and facilitate a smooth process when obtaining the Van der Elst visa.

Compliance with National Regulations

To ensure compliance with the Van der Elst visa requirements, it’s essential to stay informed about the specific regulations of the EU member state where you intend to work. These regulations may encompass various aspects, including labor laws, tax obligations, and social security contributions. You can do that with the help of an immigration and relocation consultant.

In Romania, the Van der Elst visa operates within the framework of national legislation. The Romanian Constitution and Law No. 119/2014 provide the government with the authority to issue ordinances related to the posting of foreign workers. 

According to Article 20 of the Romanian Constitution and Article 1, point III.4 of Law No. 119/2014, any foreign national who wishes to be posted on the territory of Romania must obtain a posting authorization. This authorization is issued by the General Inspectorate for Immigration, upon request from the beneficiary of the service provision, as long as the cumulative conditions specified in the ordinance are met. 

For foreigners who intend to carry out economic activities in Romania, long-stay visas are granted in accordance with Art 441 din OUG 194/2002. These visas are given to individuals who are to engage in organized and regulated economic activities as stipulated by special laws. The applicants must provide documentation proving compliance with the conditions set by the special law, medical insurance for the duration of the visa’s validity, and a criminal record certificate or an equivalent document. 

Foreigners conducting economic activities are subject to the provisions of the special legislation pertaining to natural persons authorized to engage in economic activities, sole proprietorships, and family businesses. These regulations, established in 2014, aim to ensure that the posting of foreign workers and the granting of long-stay visas for economic activities in Romania are conducted in compliance with the law and in the best interest of the country.

Benefits of the Van der Elst Visa

The Van der Elst visa offers several benefits for both employers and employees:

Cost-effective mobility: Employers can temporarily deploy non-EU workers to other EU member states without requiring complex work authorization procedures in each country, reducing administrative costs.

Access to diverse talent: Employers gain access to a broader pool of talent from different EU countries, enriching their workforce with diverse skills and experiences.

Flexibility: non-EU workers can gain valuable international experience, enhancing their career prospects and personal development while contributing to cross-border business growth.

Compliance with EU law: The visa ensures compliance with EU laws on the freedom to provide services and the movement of workers, enabling companies to expand their operations seamlessly across borders.

Enhanced business opportunities: By leveraging the Van der Elst visa, EU-based companies can explore new markets and establish a stronger presence in other member states, potentially leading to increased business opportunities.

Limitations and Compliance

While the Van der Elst visa offers numerous advantages, it’s important to be aware of its limitations and compliance requirements:

Paid Work: Generally, this visa does not permit individuals to undertake paid work in the destination country beyond the scope of the service agreement.

Duration: The visa typically grants a residence right of 90 days within a 180-day period. Extensions are possible through a Romanian residence permit, as long as the initial EU member state residence permit remains valid and extended.

Family Members: Dependent family members are usually not eligible to join the Van der Elst visa holder but can enter the destination country as visitors.

In conclusion, the Van der Elst visa is a valuable tool for facilitating cross-border work arrangements within the EU. Understanding the legal framework, eligibility criteria, associated benefits, limitations, compliance requirements, and its historical context is essential for both employees and employers. As you navigate the complexities of international employment, consulting legal experts and relevant authorities can help ensure full compliance with the specific regulations of the EU member state where you intend to work. The Van der Elst visa remains a powerful mechanism for promoting labor mobility and fostering economic integration within the European Union.