CONVINUS Global Mobility
CONVINUS Global Mobility Insights - Winter 2024 / 2025applications meant, that the Vander Elst Instructions for assignments over threemonths, started to be ignored once more: we ended up applying for national intracorporate transfer permits which were quicker and more efficient than waiting forthe consulate to resolve a standard residence visa.Perhaps, due to the fact that the Vander Elst was often ignored and work permitswere applied when they should not be applied, or maybe to have more controlabout the number of posted workers as per law 45/99 which implements thePosted Worker Directive, the Spanish legislator has now formally introduced theVander Elst in the general immigration regime as a formal work permit exemptionin art 88 i) of Real Decreto 1155/2024, de 19 de noviembre alongside other standardwork permit exemptions that have been in place for years (e.g. civil servants,priests, journalists among others).According to the new art 88 i) Foreign nationals who hold a valid work permit in aMember State of the European Union and are posted to Spain within theframework of a transnational service provision, as defined by Law 45/1999, ofNovember 29, on the posting of workers in the context of a transnational serviceprovision.Unfortunately, the Vander Elst Principle is NOT a standard work permit exemption,and it does not align with the traditional immigration process applicable to thestandard work permit exemptions for two reasons:The current process to work in Spain under a standard work permit exemption:requires a formal approval of the work permit exemption. Therefore, the workpermit exemption process in itself does not comply with the Vander ElstDoctrine, which opposes any prior authorisation that causes a disruption ordeter a provision of services within the Single Market. Either, a visa, a workauthorisation or a work permit exemption that must be authorised by themember state receiving the services cause disruptions to the freedom toprovide services.furthermore, the requirement for the approval of a Schengen Visa to recognisean exemption lasting less than 90 days also undermines the principles of theVander Elst doctrine.36
CONVINUS Global Mobility Insights - Winter 2024 / 2025A new Art. 39 states that in the cases provided for in Article 88, when the expectedduration of the activity does not exceed ninety calendar days within any onehundred-and-eighty-calendar-dayperiod, the foreign national, regardless of theirnationality, must apply for the corresponding short-stay visa at the competentSpanish consular office. In these cases, the procedure to be followed will be thatestablished for the processing of short-stay visas, and the foreign national mustprove that they meet the conditions for inclusion in one of the situationsdescribed in the previous article. Therefore, the Spanish legislator is now imposinga Schengen visa requirement to those providing services from other EU/Schengencountries for less than 90 days in any 180-day period.The Schengen Visa code, Article 6(3) of Regulation (EU) 2018/1806 allows Schengencountries to request visas for ‘persons travelling for the purpose of carrying out apaid activity’ for under three months. However, this article must always beinterpreted narrowly and must never be used to restrict fundamental EU Principlesand Doctrines.37
Expat policy 
LinkedIn
Youtube
Instagram
Email