Saturday, March 8, 2008

Van der Elst Visa

Third country nationals can come to Germany without having to apply for a residence title for the purpose of gainful employment first if certain conditions as provided in § 15 Employment Regulation (“Besch√§ftigungsverordnung”) are met. This is due to the so-called “Van der Elst - Visa” which is based on the case law of the European Court of Justice rendered with regard to Art. 49 EU Treaty.

Ҥ 15 Service delivery

For the grant of a residence title to persons who are orderly employed in the residence country of a company that is based in a member state of the European union or in a contracting state of the treaty on the European Economic Area and shall be relocated to the Federal Republic in order to perform services no approval is required.”

The regulation implements the case-law of the European Court of Justice which stipulates that a temporary relocation of employees who are third-country nationals for the purpose of cross-border services is generally protected by the freedom of services pursuant to Article 49 et. seq. EC Treaty (starting with the legal matter C-43, 93 – “Vander Elst” of the European Court of Justice). The amendment - which became effective on July 11, 2007 - was required in consequence of the judgement given by the European Court of Justice in the legal matter C-244/04. For a visa application the agencies abroad are checking whether the preconditions stipulated in the case-law guidelines of the European Court of Justice are fulfilled in the individual case. Different from the previous regulation there is no need to have had a previous employment for a certain time in the country where the employee has been employed before the assignment (such regulation being regarded as non-compliant with the EU laws and regulations by the European Court of Justice back in January 2006). However, the visa scheme is only applicable if there is an employment between the third country national and the service provider having its seat in another EU country and if the assignment is going to be for a certain period of time.

In case of any uncertainties whether or not this scheme does work it is recommended to involve the competent authorities upfront in order to get a clearance certificate whereas I would rather prefer to file the application by saying:

- firstly that the scheme applies and
- secondly, just in case it applies not, that the conditions for the “normal” work visa as laid down above are met.

With regard to proceedings cf. for further information.

Please note that this should also apply to other member countries of the European Union; however this should be checked with the experts of the respective countries.