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

Legal basis of such delegation: 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 freedom that creates a basis for the recruitment process. According to 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 imposed on the provisions within the EU are prohibited in respect to the citizen of an EU member state who has his/her company registered 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 to such recruitment processes by member states on their territories within the principle of the freedom of provision of services by another member state would be breaking the Fundamental Legal Act of the European Union, which is the Treaty of 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. Therefore, the respective companies 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 the following working conditions, in the country to which they will be delegated, should be ensured for the concerned employee. These conditions should be most suitable for the comfort and efficiency level of the respective employee.

• Optimum balance between the period of work and rest.
• Scope of annual paid leaves
• Ensuring minimum rates of pay which should include the hourly rate.
• Ensuring work safety and hygiene in the workplace.
• Equal treatment for both men and women.
• Provision for the eradication of discrimination.

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

The issue of delegating the third-country nationals (from outside the EU) by another member state was a matter of dispute before the EU Court of Justice.

The ruling on 9th August 1994 in the case C-43/93 Vander Elst was a historic one in this matter. 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, to carry out demolition work. French authorities imposed a hefty fine on him. This made Vander Elst appeal 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 the 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. This historic decision led to a free-movement of legally employed third countries to other EU member states for delegation of work by their employers.

Germany: A special example

The ruling of the EU Court of Justice was reflected in the legislation of the member states, including Germany, who introduced the Vander Elst Visa. This was a special type of Visa for such employees.

Polish businesses were allowed to delegate such employees to Germany the basis of this visa. Though this service was for a limited time, it was a huge step towards such developments.

The Vander Elst visa seamlessly allows service provision in another EU country without the need of having a specialized work permit or other permits regarding legal aspects of employment.

However, to issue it, the employee must be linked to the Polish employer by the employment agreement. It is also important that such a contract cannot be concluded only to send an employee to Germany.

Delegating – Quality of stay and Legality of Work.

Foreigners, employed in a company, based on the above scheme can work legally based on delegation, provided the conditions specified in the mentioned law are met.

The legality of employment, however, is completely different than the quality of stay in another member state. This requires an extensive explanation of the causes.

The staff employed in a company have Type D working visas and either a temporary residence permit on the territory of the Republic of Poland or a long-term EU residence permit. This type of residence permits gives an employee to stay on the territory of a different member state for not more than 3 months within 6 months. Hence keeping this in mind, we want to inform you that our service, even though provided for an unlimited time, has a limited time provision by individual people in our team.

AtoZ Serwis Plus Agency hopes the conditions will ensure that you cooperate with our recruitment staff without any worry. Further, we would ask you to verify the mentioned data consulate of your country in Poland. You can introduce them to the model of coordination proposed by us.

On adhering to the above conditions, you would receive a response from our side regarding the conformity for your required services. We invite you to cooperate and enjoy the benefits of the services of our qualified recruitment personnel.

Registration of foreigners in the country of secondment

If local regulations require the delegated employee's registration at the local liaison institutions, our company shall undertake such activities. Our company shall carry out all activities on the basis of the instructions given by the consulates of the countries in which the staff is posted. This ensures that all our undertakings are correct and up to date.