Posting Third-Country Nationals: The Vander Elst Rule, the Vander Elst Visa and A1 Cover

A posted worker is "a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works" (Article 2(1) of Directive 96/71/EC), and nationality does not change that definition.

An employer that sends posted workers in the EU therefore asks three separate questions about a non-EU employee: the work permit, the host State's posting rules and the A1.

The sections below cover the rule, the case line, the German Vander Elst visa and the 2026 infringement procedure, who qualifies, three national acts, A1 cover and a five-step check.

What Is the Vander Elst Rule?

The Vander Elst rule is the principle that a host Member State may not make a service provider established in another Member State obtain work permits, pay their costs or face a fine for third-country nationals it lawfully and habitually employs, because that restricts the freedom to provide services now guaranteed by Article 56 TFEU.

The Court decided under Articles 59 and 60 EEC; Article 59 EEC became Article 49 EC and is now Article 56 TFEU (judgment on EUR-Lex).

The rule is case law, not a provision of Directive 96/71/EC.

The 1994 Judgment: Facts and Holding

A demolition business sent eight regular employees, four Belgian and four Moroccan, to a one-month job at Château Lanson in Reims in 1989, and the Moroccan workers held one-month short-stay visas from the French consulate in Brussels. The French authorities demanded a special contribution of FRF 121,520, later reduced to FRF 30,380.

The Tribunal administratif of Châlons-sur-Marne referred the question on 22 December 1992. The full Court ruled on 9 August 1994 (CELEX 61993CJ0043) that Articles 59 and 60 EEC preclude requiring work permits from a national immigration authority, the attendant costs and an administrative fine.

Why Posted Staff Do Not Enter the Host Labour Market

Posted workers do not seek access to the host labour market when they return to their country of origin after the work, so a work permit, which controls that access, has no purpose for them.

The Court had made the same point for an employer's own workforce in C-113/89 Rush Portuguesa (27 March 1990), which the page on posting of workers case law explains with the other judgments.

The host State may still apply its minimum pay rules to the posted staff, as the Court noted in the 1994 judgment.

How the Court of Justice Developed the Vander Elst Line

The Court of Justice built on Vander Elst in five later judgments from 2004 to 2024, each testing a national condition on posted third-country nationals against the freedom to provide services. The table lists them in date order.

The pattern is consistent: permits, prior-employment periods and guarantees fall, while checks that rely on information the provider already holds survive.

What a Host State May Still Require

A host State may ask the service provider for a simple prior declaration showing that the posted third-country nationals are lawfully resident, hold the work permission and have social security cover in the State of establishment (C-244/04; C-445/03). In C-244/04 even six months of prior employment exceeded what may be required.

In C-540/22 SN (20 June 2024, Fifth Chamber) the Court held that posted third-country workers have no automatic derived right of residence, and that Article 56 TFEU allows a residence permit for each worker where the service exceeds three months, if the fee roughly matches the administrative cost, the first validity is not manifestly too short and renewal needs no excessive formalities. The declaration itself is explained under posting declarations.

What Is the Vander Elst Visa?

The Vander Elst visa is the name German practice gives to a visa that German diplomatic representations issue to third-country nationals whom an employer established in another Member State posts to Germany to provide a service.

Under § 21 of the Beschäftigungsverordnung (BeschV, the Employment Ordinance), a residence title for employees posted by an undertaking established in the EU or EEA needs no approval of the Federal Employment Agency, so the visa replaces a labour-market check, not the residence title itself (§ 21 BeschV).

The Commission challenges the practice for workers who already hold another Member State's residence permit or long-stay visa.

The 2026 Infringement Procedure Against Germany

On 30 January 2026 the European Commission sent Germany a letter of formal notice in infringement procedure INFR(2025)4025, the first stage of an infringement procedure, because it considers the additional Vander Elst visa a restriction of the freedom to provide services.

The challenged practice is an additional Vander Elst visa at diplomatic representations for third-country nationals who hold a residence permit or long-stay visa of another Member State and are posted for up to 90 days in any 180-day period.

The Commission relies on Article 56 TFEU with Article 21 of the Convention implementing the Schengen Agreement, and Germany had two months to reply (Commission press release INF/26/115).

The Commission's monthly infringement packages up to INF/26/1760 of 1 October 2026 record no later stage. A letter of formal notice does not itself change German practice.

Who Can Be Posted Under the Vander Elst Rule?

A third-country national can be posted under the Vander Elst rule when he or she is lawfully and habitually employed by a service provider established in another Member State, which the Commission's Your Europe portal describes as legally residing and working in an EU country.

The portal states: "You may also post workers who are nationals of countries outside the EU, provided they are legally residing and working in an EU country. The same posting rules apply to these workers" (Your Europe, page checked 30 September 2026).

The rule protects the provider established in the EU. An undertaking established outside the EU posts under national law, and Article 1(4) of Directive 96/71/EC forbids more favourable treatment for it; Liechtenstein, for example, lets third-country employers start at the earliest eight days after filing (Article 6a(2) of its Entsendegesetz, as of 5 November 2026). The host terms are those of the Posting of Workers Directive 96/71/EC.

How National Law Applies the Vander Elst Rule

Host States apply the Vander Elst rule through their own law, and the three acts in the table below show how Austria, France and Germany treat posted third-country nationals.

In COM(2024) 320 of 30 April 2024, the Commission reported that Croatia and the Netherlands state in law that no work permit is needed and that Latvia requires the employer to declare legal employment in the sending State. Other States are on their country pages.

A1 Cover for Third-Country Nationals Under Regulation (EU) No 1231/2010

Third-country nationals are covered by the applicable-legislation rules of Regulations (EC) No 883/2004 and (EC) No 987/2009, and so can receive an A1, when they are legally resident in a Member State and their situation is not confined in all respects within a single Member State (Article 1 of Regulation (EU) No 1231/2010).

Regulation (EU) No 1231/2010 was adopted on 24 November 2010, and it replaces Regulation (EC) No 859/2003 between the Member States it binds.

In C-477/17 Balandin (24 January 2019, First Chamber) the Court held that third-country nationals temporarily residing and working in different Member States for an employer established in a Member State may rely on the two Regulations if they are legally staying and working there.

The A1 certificate shows which social security legislation applies; it is never an obligation by itself.

The posting then follows Article 12(1) of Regulation (EC) No 883/2004, which allows an anticipated duration of up to 24 months.

Prior affiliation of a recruited worker is at least one month (Decision A2) until 1 November 2028, and at least three months from 2 November 2028 under Article 14(1) of Regulation (EC) No 987/2009 as amended by Regulation (EU) 2026/2359, which has been in force since 1 November 2026.

Denmark, the United Kingdom and the EEA States

Regulation (EU) No 1231/2010 does not bind Denmark or the United Kingdom, while Ireland takes part after notifying its wish by letter of 24 October 2007.

EEA-Lex records the Regulation as not relevant for incorporation into the EEA Agreement. The take-over of Regulation (EU) 2026/2359 by the EEA States and Switzerland is pending as of 5 November 2026.

How to Post a Third-Country National Step by Step

Run the third-country national check for each posting before it starts, because the case law, the host State's posting law and the A1 rules each ask a different question. The five steps follow the posting compliance checklist for this group of workers.

1. Confirm that the worker is lawfully and habitually employed by you and is legally resident and working in your Member State.
2. Read the host State's country page for its rule on posted third-country nationals.
3. Where the host State requires a posting declaration, file it by its national deadline; Article 9(1)(a) of Directive 2014/67/EU allows a State to require it at the latest at the commencement of the service provision. The data a host may ask for are set out under posting declarations.
4. Request the A1 where Regulation (EU) No 1231/2010 applies, for an anticipated posting of up to 24 months; see the 24-month posting rule.
5. Keep the documents for posted workers for inspections and know the posting penalties.

The steps explain the rules and never decide whether a named worker needs a permit or will receive an A1.

Beyond the Vander Elst Rule: Transfers, Pay, Entry and Non-EU Employers

The Vander Elst rule answers the work-permit question only, and seven neighbouring rules, each on its own page or outside this site, decide the rest.

• Intra-corporate transfers: Directive 2014/66/EU does not apply to third-country nationals posted under Directive 96/71/EC (Article 2(2)(c)); see intra-corporate transfer vs posting.
• Pay: posted third-country nationals receive the host remuneration like any posted worker; see posted worker remuneration.
• The labour-law clock: long-term posting after 12 months, or 18 on a motivated notification (Article 3(1a) of Directive 96/71/EC), and the worker stays posted.
• Employers outside the EU: social security agreements decide cover where one applies.
• UK employers: Regulation (EU) No 1231/2010 does not bind the UK, and the UK A1 comes from HMRC; see HMRC A1 certificate.
• Entry and stay: the host State's immigration authority decides on visas and residence titles, which this site does not cover.
• The posting changes of Regulation (EU) 2026/2359 from 2 November 2028, and other forms of cross-border work under posting compared.

Questions on Posting Third-Country Nationals

Five questions come up most often when an employer posts non-EU staff.

Do posted third-country nationals need a work permit in the host country?

Not where they are lawfully and habitually employed by a service provider established in another Member State: the Court of Justice held in C-43/93 and C-91/13 that the host State may not require one. It may require a simple prior declaration and, for services over three months, a residence permit (C-244/04, C-540/22).

Can a third-country national receive an A1?

Yes, where he or she is legally resident in a Member State and the situation is not confined in all respects within a single Member State (Article 1 of Regulation (EU) No 1231/2010). The Regulation does not bind Denmark or the United Kingdom.

Is the Vander Elst visa required in every EU country?

This page documents the Vander Elst visa as a German practice, issued by German diplomatic representations and challenged by the European Commission since 30 January 2026 (INFR(2025)4025). Each host State's own rule is on its country page under posting rules by country.

Does the Posting of Workers Directive apply to third-country nationals?

Yes: in the Commission's words on Your Europe, the same posting rules apply to workers from outside the EU who are legally residing and working in an EU country. Article 1(4) of Directive 96/71/EC bars more favourable treatment for undertakings established in a non-member State.

How long can a third-country national be posted?

The same two clocks run as for any posted worker in the EU: host labour law applies almost in full after 12 months, or 18 on a motivated notification (Article 3(1a) of Directive 96/71/EC), and the A1 covers an anticipated posting of up to 24 months (Article 12(1) of Regulation (EC) No 883/2004).