CONVINUS Global Mobility
CONVINUS Global Mobility Insights - Winter 2024 / 2025New Spanish Provisions on the Vander ElstPrinciple Challenge the Freedom to ProvideServicesAuthor: Raquel Gómez Salas, Director|Lawyer at Salas Immigration Consulting LtdIntroductionIn our latest article published in December https://salasimmigration.co.uk/workpermit-exemptions/we welcomed the inclusion of a new visa section that pavesthe way for invoking additional work permit exemptions based on EU law. This wasaccompanied by the incorporation of the Vander Elst Principle in the new SpanishImmigration Regulation for the first time since this doctrine is known.However, while the Vander Elst has been officially considered a work permitexemption under the general immigration regime, the new Spanish immigrationRegulation provisions may NOW be considered a restriction to the Freedom toProvide Services of EU/Schengen based companies in Spain.On this article, we are giving a closer look at the new Vander Elst Provisions whichwill enter into force on 20th May 2025.Vander Elst is settled case law of the European Tribunal of Justice, according towhich, third country nationals legally employed by an EU/EEA/Swiss serviceprovider and posted to another EU/EEA Member State or Switzerland to temporaryprovide services, do not require a prior work permit or visa in the second MemberState.The European Court of Justice has consistently held that a simple prior notificationby the EU/EEA/Swiss service provider in the second EU/EEA Member State orSwitzerland, should suffice. This approach aims to prevent the disruptions to thefunctioning of the single market that would result from requiring a prior visa orwork authorisation in the second country.For assignments under 90 days in any 180-day period, EU/ Schengen Member States34
CONVINUS Global Mobility Insights - Winter 2024 / 2025typically allow the provision of services of third country nationals legally residingand employed in other EU/Schengen countries, with only a prior posted workernotification. However, third-country nationals residing in non-Schengen EUcountries, such as Ireland, would still need to obtain a Schengen visa.For assignments over 90 days in any 180-day period, a residence authorisationmust be obtained in the second EU/Schengen Member State.Despite being established EU Case Law, the Vander Elst Principle has never beenformalised through a specific EU Directive. Consequently, its implementation isvery inconsistent and led to shortcomings in its incorporation into nationallegislation as now appears to be the case in Spain.The Vander Elst Principle and the evolution of its implementation in SpainIn Spain, an internal circular was initially issued in 2002 which was later replacedby a very comprehensive Instruction in 2008.With the publication of the above Instruction, the Vander Elst Work Permitexemption was formally recognised by the General Immigration Department backin 2008. This development allowed us to assist many of our clients in sending thirdcountry nationals with work and residence permit issued in other EU/EEAcountries or Switzerland to work in Spain. The Instruction was particularlyimportant to cover assignments for under 90 days in any 180-day period as itofficially recognised that no work authorisation or even a Schengen visa wasrequired if the EU employee held a work and residence authorisation in aSchengen State.However, when the provision of services lasted over three months, the 2008Instruction proved insufficient. In such cases, a residence visa had to be applied atthe Spanish consulate corresponding to the place of residence as it was a nonlucrativeresidence visa. The residence visa process was lengthy and complicated,and the 2008 Instruction was often not known or ignored by many consulates.Therefore, when Spain approved via Law 14/2013, the new fast track processes forhighly qualified and intra company transfers, which also introduced in-country35
Expat policy 
LinkedIn
Youtube
Instagram
Email