CONVINUS Global Mobility
CONVINUS Global Mobility Insights - Winter 2024 / 2025 applications meant, that the Vander Elst Instructions for assignments over three months, started to be ignored once more: we ended up applying for national intra corporate transfer permits which were quicker and more efficient than waiting for the consulate to resolve a standard residence visa. Perhaps, due to the fact that the Vander Elst was often ignored and work permits were applied when they should not be applied, or maybe to have more control about the number of posted workers as per law 45/99 which implements the Posted Worker Directive, the Spanish legislator has now formally introduced the Vander Elst in the general immigration regime as a formal work permit exemption in art 88 i) of Real Decreto 1155/2024, de 19 de noviembre alongside other standard work 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 a Member State of the European Union and are posted to Spain within the framework of a transnational service provision, as defined by Law 45/1999, of November 29, on the posting of workers in the context of a transnational service provision. Unfortunately, the Vander Elst Principle is NOT a standard work permit exemption, and it does not align with the traditional immigration process applicable to the standard 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 work permit exemption process in itself does not comply with the Vander Elst Doctrine, which opposes any prior authorisation that causes a disruption or deter a provision of services within the Single Market. Either, a visa, a work authorisation or a work permit exemption that must be authorised by the member state receiving the services cause disruptions to the freedom to provide services. furthermore, the requirement for the approval of a Schengen Visa to recognise an exemption lasting less than 90 days also undermines the principles of the Vander Elst doctrine. 36
CONVINUS Global Mobility Insights - Winter 2024 / 2025 A new Art. 39 states that in the cases provided for in Article 88, when the expected duration of the activity does not exceed ninety calendar days within any onehundred-and-eighty-calendar-day period, the foreign national, regardless of their nationality, must apply for the corresponding short-stay visa at the competent Spanish consular office. In these cases, the procedure to be followed will be that established for the processing of short-stay visas, and the foreign national must prove that they meet the conditions for inclusion in one of the situations described in the previous article. Therefore, the Spanish legislator is now imposing a Schengen visa requirement to those providing services from other EU/Schengen countries for less than 90 days in any 180-day period. The Schengen Visa code, Article 6(3) of Regulation (EU) 2018/1806 allows Schengen countries to request visas for ‘persons travelling for the purpose of carrying out a paid activity’ for under three months. However, this article must always be interpreted narrowly and must never be used to restrict fundamental EU Principles and Doctrines. 37
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