Delegating third-country nationals (non-EU) to work in the EU - Worksol
Delegating third-country nationals (non-EU) to work in the EU
#Delegation of foreigners

Delegating third-country nationals (non-EU) to work in the EU

14 October 2019

Legal basis: Delegating workers within the framework of service provision in the European Union is defined in the Directive 96/71 EC of the European Parliament and the Council of 16th December 1996 with the subsequent Directive 2014/67/EU of the European Parliament and the Council of 15th May 2014 on the enforcement of the Directive 96/71/EC and the Directive 2018/957 of 28th June 2018 amending the Directive 96/71 EC.

The aforementioned directives are directly linked to the freedom of services provisions within the framework of the European Union, which is considered one of the fundamental freedoms that create basis for single market. According to the Article 56 of the Treaty on the Functioning of the European Union (Official Journal of the EU of 26th October 2012, C 326/49), the restrictions on the free service provisions within the Union are prohibited in respect to the citizens of EU member states who have their company in a member state other than the country of the recipient. The freedom to provide services is of both active (freedom to provide services) and passive (freedom to use services) character.

Imposing any restrictions in provision of service by member states on their territories within the principle of the freedom of provision of services by another member state would be breaking fundamental legal act of the European Union, which is the Treaty on the Functioning of the European Union.

Delegating process

Delegating the citizens of third countries is carried out from the territory of a member state and by the economic entity registered on the territory of that country where they are employed legally. Thus, in this case, we are not talking about the provision of service by the employees’ countries of origin, as the company providing services is the entity registered on the territory of the EU, and it is native to the member state. They therefore have the right to employ the citizens of third countries in their company through whom they can provide services on the territory of a different member state. Consequently, the restrictions contained in this Directive, Paragraph (20), do not apply.

Article 3 of the Directive states that the following working conditions in the country to which they will be delegated should be ensured for the delegated employee, as long as that they are more favourable for them:

  1. the maximum period of work and minimum time of rest;
  2. the minimum scope of the annual paid leave;
  3. the minimum rates of pay, including the hourly rate;
  4. work safety and hygiene in the workplace;
  5. equal treatment for men and women, as well as other discrimination provisions.

 

Delegating third-country nationals

Our company fully complies with the conditions defined in the EU Directives relating to the employee delegation, hence our services are fully legal and thus safe for our contractors and employees.

 

The ruling of the European Court of Justice on delegating the third-country nationals

The issue of delegating the third-country nationals (from outside the EU) by another member state was also the subject of disputes before the EU Court of Justice. The ruling of 9th August 1994 in the case C-43/93 Vander Elst.  The case of Raymond Vander Elst, the citizen of Belgium was recognized, who within his business activity sent the employees from Morocco, employed legally in Belgium, to France, in order to carry out demolition works. French authorities imposed a high fine on him. The Belgian national appealed to the French administrative court. The EU Court of Justice, answering a question from the French court for a preliminary ruling in the appeal proceedings, found that EU Member States may not introduce additional restrictions, such as the requirement for work permits, for employees who are third-country nationals employed legally in the European Union state, sent to another country of the European Union.

A special example of Germany

The ruling of the EU Court of Justice was reflected in the legislation of member states, including Germany, who introduced for such employees a special type of visa – the Vander Elst visa. Polish businesses can, on the basis of this visa, delegate employees who are the citizens of third countries to Germany, in order to provide limited services in Germany. Vander Elst visa allows services provision in another EU country without the necessity of having a work permit or other permits regarding legal aspects of employment. However, to issue it, it is necessary for the employee to be linked to the Polish employer by the employment agreement. It is also important that such contract cannot be concluded only to send an employee to Germany.

Delegating – legality of stay and legality of work

Foreigners employed in our company on the basis of the above scheme can work legally on the basis of delegation, provided the conditions specified in law are met. The legality of employment, however, is something completely different than legality of stay in another member state and also requires explanation. The staff employed in our company have type D working visas, temporary residence permits on the territory of the Republic of Poland or long-term EU residence permit. This type of residence permits give a possibility to stay on the territory of a different member state for not longer than three months within six months. Hence our service, even though it can be provided for unlimited time, has a limited time of provision by individual people in our team.

I hope that the above information will allow you to undertake cooperation with our companies without any worries. We encourage you to verify the presented above data in the consulate of your country in Poland. You can introduce them to the model of cooperation proposed by us. Thanks to this you will receive the response confirming the legal basis of the offered services. We invite you to undertake the cooperation and benefit from services of our qualified personnel.

Registration of foreigners in the country of secondment

If local regulations require the registration of a delegated employee at the local liaison institutions, our company then performs such activities. All activities are carried out on the basis of instructions given by the consulates of countries to which the staff is posted; hence we are certain our undertakings are correct.

We invite you to undertake the cooperation and benefit from services of our qualified personnel.

Do you have a question?