New Spanish Provisions on the Vander Elst Principle Challenge the Freedom to Provide Services

Guest Author: Raquel Gómez Salas , Salas Immigration Consulting Limited

Introduction

In our latest article published in December https://salasimmigration.co.uk/work-permit-exemptions/ we welcomed the inclusion of a new visa section that paves the way for invoking additional work permit exemptions based on EU law. This was accompanied by the incorporation of the Vander Elst Principle in the new Spanish Immigration Regulation for the first time since this doctrine is known.

However, while the Vander Elst has been officially considered a work permit exemption under the general immigration regime, the new Spanish immigration Regulation provisions may NOW be considered a restriction to the Freedom to Provide Services of EU/Schengen based companies in Spain.

On this article, we are giving a closer look at the new Vander Elst Provisions which will enter into force on 20th May 2025.

Vander Elst is settled case law of the European Tribunal of Justice, according to which, third country nationals legally employed by an EU/EEA/Swiss service provider and posted to another EU/EEA Member State or Switzerland to temporary provide services, do not require a prior work permit or visa in the second Member State.

The European Court of Justice has consistently held that a simple prior notification by the EU/EEA/Swiss service provider in the second EU/EEA Member State or Switzerland, should suffice. This approach aims to prevent the disruptions to the functioning of the single market that would result from requiring a prior visa or work authorisation in the second country.

For assignments under 90 days in any 180-day period, EU/ Schengen Member States typically allow the provision of services of third country nationals legally residing and employed in other EU/Schengen countries, with only a prior posted worker notification. However, third-country nationals residing in non-Schengen EU countries, such as Ireland, would still need to obtain a Schengen visa.

For assignments over 90 days in any 180-day period, a residence authorisation must be obtained in the second EU/Schengen Member State.

Despite being established EU Case Law, the Vander Elst Principle has never been formalised through a specific EU Directive. Consequently, its implementation is very inconsistent and led to shortcomings in its incorporation into national legislation as now appears to be the case in Spain.

The Vander Elst Principle and the evolution of its implementation in Spain

In Spain, an internal circular was initially issued in 2002 which was later replaced by a very comprehensive Instruction in 2008.

With the publication of the above Instruction, the Vander Elst Work Permit exemption was formally recognised by the General Immigration Department back in 2008. This development allowed us to assist many of our clients in sending third country nationals with work and residence permit issued in other EU/EEA countries or Switzerland to work in Spain. The Instruction was particularly important to cover assignments for under 90 days in any 180-day period as it officially recognised that no work authorisation or even a Schengen visa was required if the EU employee held a work and residence authorisation in a Schengen State.

However, when the provision of services lasted over three months, the 2008 Instruction proved insufficient. In such cases, a residence visa had to be applied at the Spanish consulate corresponding to the place of residence as it was a non-lucrative residence 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 for highly? qualified? and? intra? company? transfers, which? also? introduced? in-country 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.

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 one-hundred-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.

To illustrate the changes, here's a comparative overview of the Vander Elst Work Permit Exemption requirements under the 2008 Instruction and the new Spanish Regulation:

Conclusion

Instead of relying on general principles and jurisprudence, the Van der Elst qualifying criteria and procedure should have been clearly established through secondary EU legislation years ago.

Failing to do this, EU/Schengen Member states continue to impose additional requirements, thereby, restricting the Freedom to Provide Services within the EU.

Indeed, as it stands, the legal framework of the standard work permit exemptions in Spain does not comply with Vander Elst Case Law. While the new Spanish Immigration Regulation (Royal Decree 1155/2024) slightly reduces processing times and application in-country is now possible for over three months, it remains insufficient. We would still need to engage with Consulates and local immigration offices to get the necessary residence authorisation granted.

Further clarification is needed particularly regarding assignments lasting up to 90 days within any 180-day period. Without such clarification, the new legislation implies that all third-country nationals, including those legally employed and residing in the EU/EEA/Switzerland, must obtain a prior Schengen visa for the Vander Elst work permit exemption to be recognised.

We hope these new provisions can be clarified by the General Immigration Department before the entry into force in May 2025. In the meantime, we strongly recommend any EU/EEA/Swiss service providers who wish to continue benefiting from the Vander Elst work permit exemption for their employees, stay informed and keep in touch should they need to provide services in Spain in the coming months.