Van Der Elst Visa, Compliance Risks for Employers Posting Non‑eu Staff to Germany

When an EU-based service provider needs to send a lawfully employed third-country national to Germany for a cross-border project, the Van der Elst visa framework appears to offer a straightforward pathway, but the van der elst visa compliance risks that employers actually face are far more complex than the principle suggests. The European Commission’s decision in February 2026 to launch infringement proceedings against Germany over its national Van der Elst visa practice has intensified scrutiny of every employer relying on this posting mechanism.

At Schlun & Elseven Rechtsanwälte, we regularly advise companies navigating the intersection of EU free-movement law and German immigration enforcement, and the compliance failures I encounter range from misclassification of posting arrangements to serious social-security and labour-law breaches. This guide sets out the legal tests, practical triggers, and concrete steps that HR teams, global mobility managers, and in-house counsel need to get right before, during, and after a Van der Elst posting to Germany.

Key Takeaways

• Van der Elst is not a blanket exemption. The ECJ principle permits posting third-country nationals only where a genuine, temporary cross-border service is provided, it does not replace standard German work-permit requirements for intra-group transfers, labour leasing, or long-term assignments.
• Germany requires a national Van der Elst visa when the posting is expected to exceed three months within a 12-month period, or when the employee is a national of a country subject to a visa requirement.
• EU enforcement is escalating. The European Commission opened infringement proceedings against Germany in February 2026, challenging the compatibility of German national visa requirements with the freedom to provide services under the TFEU.
• Labour-law and social-security obligations run in parallel. Employers must secure an A1 certificate, comply with German minimum-wage and working-time rules, and file posting declarations, failure on any front exposes the company to administrative fines and back-payment claims.
• Sector-specific screening is mandatory in defence, dual-use, and energy contexts: sanctions and export-control clearances must form part of every pre-posting review.

Legal Background, Van der Elst Visa Germany, TFEU, and ECJ Precedent

The Van der Elst visa derives its name from the European Court of Justice ruling in Vander Elst v. Office des Migrations Internationales (Case C‑43/93, 1994). In that landmark decision, the ECJ held that Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU), which guarantee the freedom to provide services across the EU, prohibit a host Member State from requiring an additional work permit for third-country nationals who are already lawfully employed by a service provider established in another Member State, provided the posting is temporary and genuinely linked to cross-border service provision.

The ruling established a principle that has shaped EU mobility law for over three decades: where an employer exercises the freedom to provide services TFEU, restricting the accompanying movement of its lawfully employed staff constitutes an unjustified barrier to that freedom. However, the ECJ also acknowledged that Member States may impose proportionate requirements, such as prior notification or limited documentation, provided those measures do not amount to a de facto work-permit obligation.

Germany has historically taken a more restrictive approach than most Member States. Rather than relying solely on notification, German practice has required third-country nationals posted under Van der Elst arrangements to obtain a specific national visa, the so-called Vander Elst visa, as a condition of lawful entry and work. This visa is governed by the German Residence Act (Aufenthaltsgesetz), and the procedural requirements are outlined in embassy-specific guidance issued by the Auswärtiges Amt (Federal Foreign Office).

Key Case Law and EU Instruments, Timeline

• 1994, ECJ Van der Elst ruling (C‑43/93). Established that host-state work-permit requirements for lawfully employed third-country nationals posted under TFEU Articles 56–57 constitute a restriction on the freedom to provide services.
• 2023, European Labour Authority (ELA) report on posting third-country nationals. Documented divergent Member State practices and identified Germany’s national visa requirement as among the most burdensome in the EU.
• February 2026, European Commission infringement proceedings against Germany. The Commission formally challenged Germany’s Van der Elst visa practice as incompatible with EU law, asserting that the requirement imposes a disproportionate burden on cross-border service provision.

When Van der Elst Applies in Practice, Germany-Specific Rules for Posting Third-Country Nationals

Understanding when the Van der Elst framework legitimately applies is the first step in any compliance assessment. Not every cross-border deployment of a non-EU employee qualifies. In my experience, the most common errors arise from employers assuming that any movement of staff between EU offices triggers Van der Elst protection, when in fact the arrangement must satisfy several cumulative tests.

The posting must involve a genuine employment relationship in the sending Member State: the employee must be lawfully employed and socially insured there before the posting begins. The cross-border activity must constitute a temporary provision of services under a commercial contract between the sending employer and a client or project in Germany, rather than a disguised placement of labour. The posted worker must not substitute for local hiring or fill a permanent position. And the arrangement cannot amount to intra-group labour leasing, where the sending entity acts merely as an intermediary rather than a genuine service provider.

Duration Thresholds and National Visa Triggers

Germany’s practical threshold for requiring a national Van der Elst visa is tied to both the expected duration of the posting and the nationality of the worker. According to the guidance published by German embassies (such as the Auswärtiges Amt’s Bern embassy page), a Vander Elst visa is typically required when the posting to Germany is expected to last longer than three months within a 12-month period. For nationals of countries subject to a general visa requirement under German law, the visa obligation may apply regardless of the posting’s duration.

This three-month threshold is not a statutory bright line in the Residence Act itself, it tracks the Schengen short-stay visa limit and reflects administrative practice. However, the ELA report on posting third-country nationals confirmed that Germany applies this threshold as a practical benchmark, making it one of the few Member States to impose a mandatory visa process for posted workers rather than relying on prior notification alone.

Activities Covered vs. Excluded

Not all work activities qualify for Van der Elst protection. The framework covers temporary service assignments such as:

• On-site installation, commissioning, and maintenance of equipment supplied under a service contract
• Short-term technical consultancy and project support
• Training delivery linked to a cross-border service agreement
• Construction and assembly work performed under a genuine subcontracting arrangement

Activities that are typically excluded include intra-corporate transfers where no external client relationship exists, temporary agency work (labour leasing / Arbeitnehmerüberlassung), and deployments where the worker performs the same role as local employees under the direction of the German entity. In these cases, a standard German work visa or an ICT permit under §19 of the Residence Act is likely required instead.

Top Van der Elst Visa Compliance Risks Employers Must Assess

Even where the Van der Elst principle applies in theory, practical compliance failures can expose employers to visa refusals, administrative fines, and reputational damage. The following risks are the ones I encounter most frequently when advising EU-based service providers on posting third-country nationals to Germany.

Misclassification, Using Van der Elst to Mask Intra-Group Transfers and Labour Leasing

The single biggest compliance risk is structural misclassification. If a German group company requests “support staff” from an affiliate in another EU Member State, and the posted workers perform the same tasks as local employees under the supervision of the German entity, this is not a cross-border service, it is labour leasing. German authorities, particularly the Finanzkontrolle Schwarzarbeit (FKS) operated by the Zoll (German Customs), actively investigate such arrangements. Red flags include: no identifiable external service contract, payment calculated per worker rather than per deliverable, and integration into the German entity’s management structure. Mitigation requires clear commercial contracts, separate invoicing, and documented project-based reporting lines.

Treating an EU Residence Permit as a Work Authorisation for Germany

A residence permit issued by one EU Member State does not automatically authorise its holder to work in another Member State. I regularly see employers assume that because their third-country national employee holds a valid residence and work permit in, say, the Netherlands or France, no further authorisation is needed for a posting to Germany. This is incorrect. The Van der Elst visa or a German national visa is a separate requirement, and reliance on a home-state permit alone does not satisfy German immigration law. The Zoll’s overview of residence titles for third-country nationals posted by foreign-domiciled employers makes this distinction explicit.

Inadequate Documentation Showing Genuine Employment and Service Provision

Even where the posting genuinely qualifies, employers must be able to demonstrate compliance on request. German authorities may require the following documents at the border, at the workplace, or during an inspection:

• Valid employment contract in the sending Member State (with evidence of ongoing payroll and social contributions)
• Service contract between the sending employer and the German client
• Posting letter (Entsendeschreiben) specifying duration, location, and tasks
• A1 certificate confirming social-security coverage in the home state
• Mission order or project assignment document
• Timesheets and on-site attendance records
• Proof of travel and accommodation arrangements

Missing or incomplete documentation is a frequent cause of enforcement action, and in some cases, it leads to a presumption that the posting is not genuine.

Failing to Comply with Posted-Worker Labour Rules

Obtaining the correct visa is only half the equation. Employers posting third-country nationals to Germany must comply with the German Posted Workers Act (Arbeitnehmer-Entsendegesetz, AEntG), which requires adherence to German minimum wage rules, working-time limits, and health and safety standards. The FKS unit of the Zoll enforces these obligations and has the authority to impose substantial administrative fines for underpayment or inadequate recordkeeping.

Social-Security and A1 Mismatches

When an employer fails to secure the correct A1 certificate, or obtains one based on incorrect information, the consequence can be double social-security liability: contributions become payable in both the sending state and Germany. This risk is discussed in detail in the next section, but it belongs on every employer’s pre-posting compliance checklist as a top-tier financial exposure.

Sanctions, Export Controls, and Sector-Specific Risks

For postings into sensitive sectors, defence, dual-use technology, energy infrastructure, telecommunications, employers must verify that the posted worker is not subject to EU or German sanctions and that the relevant export-control licences are in place. This risk is expanded below but warrants flagging here because it is often overlooked entirely in mobility planning.

Social Security, A1 Certificate, and Cross-Border Contributions

The A1 certificate is the cornerstone document confirming that a posted worker remains subject to the social-security legislation of the sending Member State. Under EU Regulation 883/2004, an employee posted to another Member State for a period of up to 24 months continues to be insured in the home state, provided the posting is genuinely temporary and the employer maintains a substantial business presence in the sending country.

Employers must apply for the A1 certificate from the competent social-security institution in the sending state before the posting begins. In practice, I advise clients to submit applications at least four to six weeks in advance, as processing times vary by Member State. German social-security authorities, and the FKS during workplace inspections, will routinely request sight of the A1 certificate, and its absence raises an immediate presumption of non-compliance.

If the posting is expected to exceed 24 months, the default rule shifts: the worker becomes subject to German social-security legislation unless the employer applies for and receives an Article 16 exception agreement between the two Member States. Failure to manage this transition correctly creates the risk of double contributions, the employer may be required to pay arrears into the German system while having already contributed in the home state, with recovery often proving difficult and time-consuming.

Cross-border payroll must reflect the correct contribution regime. Where the A1 applies, German-side deductions are not required, but minimum-wage and gross-pay obligations under German labour law still apply in full. In my experience, the most common payroll errors arise when employers confuse social-security exemption with a broader labour-law exemption, which does not exist.

Labour Law and Posted-Worker Obligations, Wages, Working Time, and Posting Declarations

German labour law applies to posted workers from their first day on German soil. The Posted Workers Act (AEntG) and the Minimum Wage Act (Mindestlohngesetz, MiLoG) set out the baseline obligations that every employer posting third-country nationals to Germany must meet, regardless of whether the posting is structured under Van der Elst or any other framework.

Key obligations include payment of at least the German statutory minimum wage (and any applicable sectoral minimum wage, which may be significantly higher in construction, electrical trades, cleaning, and other sectors), adherence to German working-time rules under the Working Time Act (Arbeitszeitgesetz), provision of minimum paid leave, and compliance with occupational health and safety standards. The employer must also designate a contact person in Germany who can receive and respond to official communications.

Reporting and Recordkeeping Requirements

Employers are required to notify the FKS of the posting before work commences, using the prescribed posted-worker declaration form. Records of working time, pay, and social-security status must be maintained in German (or with a certified translation) and kept available at the German work site for inspection. Recordkeeping obligations typically extend for at least two years after the posting ends, and in sectors covered by the AEntG, the retention period may be longer.

Example, Transport Sector Posted-Worker Declaration

A posted worker declaration is a mandatory notification submitted to the competent authority before a worker begins a posting. In the transport sector, this declaration includes the identity and contact details of the sending company, the identity and driving licence number of the posted driver, and the expected duration and routing of the assignment. Declarations are typically valid for a maximum of six months. Failure to submit the declaration, or providing incomplete information, is an administrative offence enforceable by the FKS with fines that can reach significant amounts per violation.

Special Sectors, Sanctions, Export Control, and Sensitive Industry Checks

Certain postings carry heightened regulatory requirements that go beyond immigration and labour law. When a third-country national is posted to Germany to work in defence, dual-use technology, energy infrastructure, or telecommunications, the employer must conduct pre-posting screening against EU and German sanctions lists and verify whether export-control licences are required under German law.

The German Federal Office for Economic Affairs and Export Control (BAFA) administers export-control regulations and maintains guidance on screening obligations. In my view, sanctions and export-control clearance should be a standard item on every pre-posting checklist, not an afterthought triggered by sector-specific red flags. The consequences of non-compliance range from criminal prosecution to debarment from public contracts, and the reputational damage can far exceed any administrative fine.

Employers should integrate sanctions screening into their mobility workflow by requiring compliance sign-off before any posting is approved, particularly where the posted worker holds nationality from a country subject to EU restrictive measures or where the work involves access to controlled technology.

Repeat and Extended Postings, Governance and Internal Controls

Van der Elst postings are, by definition, temporary. When an employer repeatedly posts the same individual to Germany, or extends an initial posting beyond the originally planned duration, the arrangement risks being reclassified as a permanent employment relationship subject to full German immigration and labour-law requirements.

In my practice, I advise clients to establish clear internal governance controls that include centralised approval for all postings, mandatory reviews at the 90-day, 180-day, and 365-day marks, and documented escalation procedures when a posting is extended. If a third-country national’s cumulative time in Germany exceeds the thresholds that trigger national-visa or residence-permit requirements under the Residence Act (Aufenthaltsgesetz), the employer must transition the worker to the appropriate German immigration status, typically a standard employment visa or an ICT permit.

Sample clause language for secondment agreements should specify the maximum duration, the conditions under which an extension may be requested, and the employer’s obligation to apply for the necessary German permits if the posting exceeds the Van der Elst framework. Without these controls, I regularly see organisations accumulate compliance risk over multiple successive postings without any single posting appearing problematic in isolation.

Reporting Obligations by Entity Type

Practical Compliance Checklist for Employers

The following 12-point checklist summarises the essential steps for managing Van der Elst visa compliance risks across the full posting lifecycle. I recommend that employers integrate these items into their standard mobility approval workflow.

1. Confirm Van der Elst eligibility. Verify that the posting involves a genuine cross-border service under a commercial contract, not an intra-group transfer or labour leasing.
2. Check visa requirements. Determine whether the worker’s nationality and the expected posting duration trigger a German Van der Elst visa application.
3. Gather employment documentation. Assemble the employment contract, payroll evidence, and proof of social-security registration in the sending state.
4. Apply for the A1 certificate. Submit the application to the sending state’s social-security authority at least four to six weeks before the posting start date.
5. Prepare the posting letter. Issue a formal Entsendeschreiben specifying the worker’s tasks, duration, location, and reporting lines in Germany.
6. File the FKS posting declaration. Notify the Zoll / FKS before work begins, using the prescribed form.
7. Verify labour-law compliance. Confirm that pay meets German minimum-wage and sectoral-wage requirements, and that working-time limits will be observed.
8. Conduct sanctions and export-control screening. Screen the worker against EU and German sanctions lists; obtain BAFA clearance if the work involves controlled technology.
9. Arrange insurance coverage. Ensure adequate health insurance and, where applicable, occupational accident insurance for the duration of the posting.
10. Designate a contact person in Germany. Appoint a named individual who can receive official communications and present documentation during inspections.
11. Maintain records on site. Keep copies of all relevant documents at the German workplace, available for inspection in German or with certified translations.
12. Monitor duration and escalate. Track cumulative posting days and initiate escalation procedures at the 90-day, 180-day, and 365-day thresholds.

Employers can find Business Immigration lawyers in Germany through our directory to obtain tailored templates, including a downloadable posting checklist, sample posting letter, and A1 application quick guide.

Conclusion, Managing Van der Elst Visa Compliance Risks Effectively

The Van der Elst framework remains a valuable tool for EU-based service providers that need to deploy non-EU staff across borders. But it is not a shortcut, and the van der elst visa compliance risks that accompany its use in Germany are real and growing, particularly in light of the European Commission’s February 2026 infringement action and the intensifying enforcement posture of German authorities.

In my experience, the employers that avoid problems are those that treat Van der Elst compliance as a cross-functional exercise from the outset. Immigration, HR, payroll, legal, and, where relevant, export-control teams must all be involved before a posting is approved. The checklist and structure set out in this article provide a practical starting point, but every posting carries case-specific variables that require professional assessment.

If you are planning to post third-country nationals to Germany under the Van der Elst framework, or if you need to audit existing posting arrangements for compliance, early specialist advice is the most effective way to protect your organisation from enforcement risk, financial exposure, and operational disruption.

Sources

1. Treaty on the Functioning of the European Union (TFEU), Articles 56 & 57 (EUR-Lex)
2. European Labour Authority (ELA), Report on Posting Third-Country Nationals (2023)
3. German Customs (Zoll), Overview of Residence Titles for Third-Country Nationals
4. German Residence Act (Aufenthaltsgesetz), Official Text
5. German Federal Office for Economic Affairs and Export Control (BAFA)