Van der Elst residence permit: a practical case

The “Van der Elst” residence and work permit is a legal instrument that allows non-EU workers, lawfully employed by a company established in a European Union member state, to be temporarily posted to another EU country to provide services under an international subcontracting agreement. It is therefore a mechanism designed to facilitate business mobility within the single market.

The origin of this concept dates back to a judgment of the Court of Justice of 9 August 1994, which took its name from the case that generated it. The proceedings concerned a Belgian entrepreneur, Raymond Van der Elst, owner of a company in Brussels that employed Moroccan workers who were lawfully resident and authorized to work in Belgium. In 1989, the company obtained a contract in France and sent a team of workers there, including some of these employees.

Although they held short-term visas, the French authorities challenged their presence because they lacked French work permits, and fined the employer. Van der Elst appealed the decision, arguing that such a requirement constituted an obstacle to the freedom to provide services guaranteed by Community law. The Court of Justice ruled in his favor, establishing that a member state cannot require a company established in another EU country to obtain an additional work permit for its third-country national employees, provided they are lawfully employed and resident in the state of origin.

From this ruling derives the principle that non-EU workers lawfully employed in one member state may be temporarily posted to another EU country without the need for a new local work visa. Over time, this principle has been implemented differently across national legislations.

Some countries, such as Ireland, provide for a specific visa to be requested at diplomatic missions. Italy, on the other hand, regulates the matter through a work permit under Article 27, paragraph 1-bis of the Consolidated Immigration Act, intended for non-EU workers posted by European companies within the framework of a service contract. This permit is issued outside the annual entry quotas, precisely in application of the principles established by the Van der Elst judgment.

In the Italian context, posting also entails certain administrative requirements. The company sending workers must submit a prior posting notification through the Ministry of Labour’s online portal, appoint a representative domiciled in Italy, and ensure compliance with the working and pay conditions established under Italian law. It must also retain documentation related to the posting for possible inspections.

To qualify under the Van der Elst regime, the worker must reside legally in the member state where the employer is based, be lawfully employed, and be sent abroad exclusively to perform services under a contract between the originating company and the host company. The stay is strictly linked to the duration of the assignment and does not allow for work activities other than those authorized.

The application for the residence and work permit requires documents proving the worker’s identity, legal residence in the state of origin, the employment relationship, and the existence of the service contract between the sending company and the Italian host company. Processing times and permit duration vary from country to country: for example, in Ireland the visa may cover up to twelve months, while in Italy the permit may last up to two years and can be renewed under certain conditions.

In essence, the Van der Elst regime is a fundamental tool for ensuring the free provision of services within the European Union, allowing companies to operate across borders with their own staff, without creating unjustified bureaucratic obstacles, while still respecting the rules of the host country and the temporary nature of the posting.

Your Way to Italy: our assistance

Our team is available to provide support and assistance regarding italian citizenship and immigration law! Contact us to schedule your first consultation! #Yourwaytoitaly

The content of this article is intended to provide general information on the topic. For doubts or specific cases, it is advisable to seek specialized legal advice tailored to your particular situation.

Article written by Alessia Ajelli, Managing Associate of LCA Studio Legale, Italian lawyer specialized on Italian immigration and citizenship law, and Paolo Grassi, Trainee of LCA Studio Legale.