When a company established in the European Union wishes to send workers on a temporary assignment to another country, a number of doubts and questions often arise regarding the posting or mobility of non-EU workers, that is, workers who are not citizens of an EU Member State, within European territory. Questions may include: Is it possible to post non-European citizens for work within the European Union? What specific conditions must they meet? Is there any difference compared with the posting of EU citizens? What risks or sanctions may arise?
In this article, we address all these questions through a practical case study and analyse in detail the posting of non-EU workers within the European Union. We review the relevant European case law on this matter, including the most important and influential judgments, and explain the requirements and conditions that must be met in order to carry out a lawful posting of workers.
Can a company post non-EU workers within the European Union?
Yes. In principle, a company established in an EU Member State may temporarily post non-EU workers to another Member State, provided that those workers reside and work legally in the country of origin and maintain an employment relationship with the company posting them. However, this possibility is not automatic. Among other aspects, it is necessary to review the validity of the residence and work permits, the duration of the posting, the applicable social security regime, the declaration obligations in the country of destination, and compliance with the minimum employment conditions required in that State. Each posting must therefore be assessed on a case-by-case basis in order to avoid labour, immigration, administrative or social security risks, as explained below.
Difference between the European Union, the Schengen Area and a work permit
Before examining the different aspects of this issue, it is first important to underline that the two countries involved in the situation analysed, namely France, the country of origin where the company concerned is established and where the non-EU workers have obtained their residence permits, and Portugal, the country of destination of the posted workers, are both part of the European Union. They are therefore both EU Member States and also belong to the Schengen Area.
What is the Schengen Area?
The Schengen Area is a European area of free movement in which, as a general rule, border controls between participating States have been abolished. In practical terms, this means that a person who is legally present within the Schengen Area may travel from one Schengen State to another without passing through internal border controls, regardless of their nationality. National authorities nevertheless retain powers relating to police, immigration and security checks. This principle is reflected in the Schengen Borders Code.
The European Union and the Schengen Area are not the same
It is nevertheless important to distinguish between the European Union and the Schengen Area, as they are not the same thing. The European Union is a political, economic and legal organisation made up of various European States. The Schengen Area, by contrast, is a zone in which persons may circulate between participating countries without ordinary internal border controls. Some countries may be members of the European Union without fully participating in Schengen, while other countries that are not members of the European Union do participate in the Schengen Area.
In the case of non-EU workers holding a valid residence permit issued by France, the Schengen Area allows, in principle, their temporary travel to Portugal without the need to cross an internal border checkpoint. In addition, third-country nationals who hold a valid residence permit issued by a Schengen State may stay in other Schengen States for a maximum of 90 days within any 180-day period, provided that they comply with the general conditions of entry and stay.
💡 However, this freedom of movement must not be confused with an automatic authorisation to work in Portugal. The Schengen Area does not replace the labour, immigration, social security, tax or administrative rules applicable to the transnational posting of workers.
What is a posted worker?
First of all, it should be clarified that a “posted worker” is a worker sent by their employer to temporarily provide a service in another Member State of the European Union. The freedom of establishment and the freedom to provide services are fundamental freedoms enshrined in the Treaty on the Functioning of the European Union (TFEU). For a posting to exist, there must be an employment relationship, of whatever nature, between the company and the posted worker. Employees may only be posted if they already have an employment contract with the company, and the company carrying out the posting must conduct a significant and genuine activity in the territory of the Member State of origin.
EU workers providing services in another Member State
Although our analysis in this article focuses on the posting of non-EU workers, it is first necessary to mention that Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004, on the coordination of social security systems, and Regulation (EC) No 987/2009, which lays down the rules for implementing the former Regulation, govern the social security legislation applicable to nationals of one Member State who are temporarily posted to another European Union Member State different from the one in which they usually perform their work.
Article 12(1) of Regulation (EC) No 883/2004 specifically provides that:
“A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that the person is not sent to replace another person.”
Under this Regulation, EU workers posted to another European Union country may remain covered by the social security system of their country of origin for the duration of the posting, which is limited to 24 months, without needing to register or pay social security contributions in the country of destination. This is possible provided that the requirements and formalities established in the country of origin are met and that, before the posting begins, a certificate is requested confirming that, during the posting period, the workers remain affiliated with that social security system. In practice, this is the A1 certificate. Regulation (EC) No 987/2009 sets out the rules for implementing Regulation (EC) No 883/2004, coordinating social security systems within the European Union, the European Economic Area and Switzerland. The above-mentioned Regulations (EC) No 883/2004 and No 987/2009 have applied to the coordination of the social security systems of the 27 Member States of the European Union since 1 May 2010. The United Kingdom ceased to be a Member State of the European Union on 1 February 2020.
💡 These Regulations also apply in relations with Switzerland since 1 April 2012, and with the States belonging to the European Economic Area since 1 June 2012, namely Iceland, Liechtenstein and Norway.
Non-EU workers posted to a European Union country
Workers who are nationals of third countries, that is, non-EU workers, may also be temporarily posted from one European Union Member State to another, provided that they reside and work legally in the country of origin. In this situation, we are referring to workers employed by a company established, with its registered office, in France, who hold a valid residence and work permit, and who are temporarily posted to another European Union country, such as Portugal, in order to carry out a service provision.
Certificate and social security for non-EU workers
As explained in the previous section, nationals of EU Member States are entitled to remain covered by the social security system of their country of origin when they are temporarily posted to another Member State. This regime is not limited exclusively to European citizens. Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extends the application of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to third-country nationals who, solely because of their nationality, would not initially be covered by those regulations, provided that they are legally resident in the territory of a Member State.
Article 1 of Regulation (EU) No 1231/2010 states:
“Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 shall apply to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality, as well as to members of their families and to their survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State.”
Legal residence as a prior condition
As stated in the first recital of Regulation (EU) No 1231/2010, the purpose of this rule is to improve the integration of third-country nationals who are legally resident in the territory of the Member States, by granting them a set of uniform rights that is as close as possible to the regime applicable to EU citizens. However, the application of this Regulation requires an important condition: the non-EU worker must already be legally resident in the territory of a Member State.
Therefore, where a non-EU worker performs services in an EU Member State on the basis of a valid residence and work permit, and is duly registered with the social security system, that worker may be temporarily posted to another Member State while remaining covered by the social security system of the country of origin, provided that the posting requirements are met.
Residence permit, visa and the 90-day limit
In any event, it must be borne in mind that the temporary posting may not exceed the period permitted by the applicable rules. More specifically, it may not go beyond the authorised period or, where shorter, the validity period of the relevant residence and work permit. In other words, posting a worker to another Member State cannot be used as an indirect way to extend the duration of the residence permit granted in the country of origin. If the employee’s residence and work permit expires during the intended posting period, it will be necessary to renew or regularise that permit before or during the posting. It should also be remembered that Regulation (EU) No 1231/2010 does not apply in the same way in all States. Certain countries, such as Denmark, are excluded, and there are also particularities concerning the United Kingdom following Brexit.
The Vander Elst doctrine, posted third-country workers and the freedom to provide services
An essential reference in this area is the judgment delivered by the Court of Justice of the European Communities, now the Court of Justice of the European Union (CJEU), on 9 August 1994, in Case C-43/93, Raymond Vander Elst v Office des migrations internationales.
💡 This judgment is decisive because it recognises that a company established in one Member State may temporarily post third-country national workers to another Member State, in the context of a service provision, provided that those workers reside and work legally in the Member State of origin.
Under this case law, the Member State of destination may not automatically or disproportionately require the worker to obtain a new work permit where the workers are already lawfully employed by a company established in another Member State and the posting is temporary in nature.
Obligations in the country of destination
Consequently, the non-EU workers covered by the present analysis may benefit from the European rules on the coordination of social security systems, provided that they hold a valid residence and work permit in the country of origin. In that case, pursuant to Regulation (EU) No 1231/2010, the application of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 will be extended to those workers, allowing their temporary posting and the continuation of their coverage under the original social security system.
‼️ Nevertheless, this possibility must always be assessed on a case-by-case basis. Particular attention should be paid to the validity of the residence and work permits, the worker’s effective registration with the social security system, the expected duration of the posting, the existence of a genuine service provision, and compliance with the formal obligations required in the Member State of destination.
Requirements for posting non-EU workers within the European Union
| No. | Requirement to verify | Checklist |
|---|---|---|
| 1 | The company is validly established in a Member State of the European Union. | ☐ |
| 2 | The company carries out a genuine and significant activity in the country of origin. | ☐ |
| 3 | The non-EU worker resides legally in the country of origin. | ☐ |
| 4 | The worker holds a valid residence permit throughout the entire posting period. | ☐ |
| 5 | The worker is authorised to work in the country of origin. | ☐ |
| 6 | An employment relationship exists between the worker and the company posting them. | ☐ |
| 7 | The posting is temporary and relates to a specific assignment. | ☐ |
| 8 | The duration of the posting does not exceed the permitted period, particularly the general 24-month limit for social security purposes. | ☐ |
| 9 | The posting remains within the validity period of the applicable residence permit, work permit or visa. | ☐ |
| 10 | Where applicable, the A1 certificate has been requested in order to maintain affiliation with the social security system of the country of origin. | ☐ |
| 11 | The prior posting declaration required by the country of destination has been submitted. | ☐ |
| 12 | It has been verified whether the country of destination requires a local representative or contact person. | ☐ |
| 13 | The labour law rules applicable in the country of destination have been reviewed. | ☐ |
| 14 | The minimum employment conditions of the country of destination are respected: minimum wage, working time, rest periods, holidays and occupational safety. | ☐ |
| 15 | The collective agreements applicable in the country of destination have been reviewed. | ☐ |
| 16 | It has been checked whether there are mandatory bonuses, sector-specific allowances, daily allowances, accommodation obligations or compensation payments. | ☐ |
| 17 | The employment documentation has been prepared in the event of an inspection: employment contract, payslips, proof of registration, A1 certificate and permits. | ☐ |
| 18 | It has been verified whether any documents must be translated into the language of the country of destination. | ☐ |
| 19 | It has been checked whether sector-specific obligations apply, particularly in construction, assembly, logistics or public works. | ☐ |
| 20 | It has been reviewed whether there is an obligation to register presence on site or to comply with systems similar to Check In at Work. | ☐ |
| 21 | It has been analysed whether the posting requires any visa, notification or additional permit due to its duration or the worker’s nationality. | ☐ |
| 22 | Labour, immigration, tax, administrative and social security risks have been assessed before the start of the assignment. | ☐ |
CJEU case law on the posting of non-EU workers
The possibility of posting non-EU workers within the European Union does not derive only from EU rules on the freedom to provide services, but also from the case law of the Court of Justice of the European Union (CJEU). Through several judgments, the CJEU has made it clear that a Member State of destination may not impose disproportionate requirements that would make the temporary posting of third-country workers who already reside and work legally in another Member State impossible or excessively difficult. The principle established by CJEU case law may be summarised as follows:
“A company established in one Member State may temporarily post non-EU workers who are lawfully employed in that State to provide services in another European Union country, without the destination country being allowed to automatically require new work permits or unjustified additional requirements.”
That said, this does not prevent the State of destination from requiring proportionate checks, prior declarations or documentation that makes it possible to verify that the posting complies with the law.
Vander Elst judgment, C-43/93, the starting point
As explained above, the Vander Elst judgment, delivered by the Court of Justice on 9 August 1994, is the foundational decision in this area. The case concerned a Belgian company that wished to temporarily post Moroccan workers to France. Those workers were legally residing and working in Belgium. France required the company to obtain additional work permits so that those employees could carry out activities on French territory. The CJEU held that this requirement was contrary to the freedom to provide services, as it created a barrier for a company seeking to perform a temporary service in another Member State with workers who were already lawfully integrated into its workforce in the country of origin.
💡 This judgment laid the foundation for the so-called Vander Elst doctrine, according to which the Member State of destination may not automatically require a new work permit for non-EU workers who are lawfully employed in another Member State and are temporarily posted in the context of a service provision.
Commission v Luxembourg, C-445/03, disproportionate guarantees
The Vander Elst doctrine was later confirmed and strengthened by the Court of Justice of the European Union in Commission v Luxembourg, C-445/03, delivered on 21 October 2004.
In that case, Luxembourg had introduced a particularly strict regime for companies established in other Member States that wished to temporarily post non-EU workers to its territory. In practice, the rules required the company to obtain individual or collective work permits, the workers to be employed by the company of origin under an open-ended employment contract, that employment relationship to have existed for at least six months before the posting, and, in addition, the company to provide a bank guarantee intended to cover possible repatriation costs.
The Court held that this combination of requirements went beyond what was necessary and amounted to an unjustified restriction on the freedom to provide services within the European Union. According to the CJEU, the destination Member State may verify that non-EU workers are lawfully employed and legally residing in the Member State of origin. However, it may not turn that control into a system of contractual requirements or financial guarantees that, in practice, make it excessively difficult to provide services in another EU country.
💡 This judgment is important because it confirms that Member States may protect their legitimate interests and carry out administrative checks, but those measures must remain proportionate.
Commission v Germany, C-244/04, no minimum one-year employment requirement
In Commission v Germany, C-244/04, delivered on 19 January 2006, the CJEU examined German legislation that made the posting of non-EU workers conditional on those workers having been employed by the posting company for at least one year before the start of the assignment. The Court rejected this requirement. It clarified that the concept of a worker being “lawfully and habitually employed” in the Member State of origin cannot be interpreted as requiring a minimum prior period of employment. What matters is that there is an employment relationship with the company carrying out the posting, not that this relationship must necessarily have a specific minimum duration imposed by national law.
💡 This judgment is particularly relevant because it prevents Member States from introducing additional national conditions — such as a minimum one-year seniority requirement — that do not derive from EU law.
Commission v Austria, C-168/04
The judgment in Commission v Austria, C-168/04, delivered on 21 September 2006, further consolidated this line of case law. Austria had introduced a system of “posting confirmation” which, although formally presented as an administrative formality, operated in practice as a prior authorisation scheme. In addition, its granting was linked to requirements such as a substantial prior employment relationship or the existence of an open-ended employment contract.
💡 The CJEU held that these conditions were contrary to the freedom to provide services because they imposed excessive obstacles to the posting of non-EU workers.
The judgment also criticised the Austrian rules that provided for the automatic refusal of an entry or residence permit where the posted worker had entered Austria without a visa. The Court considered that this type of automatic refusal was disproportionate, even in a context where the worker was being posted by a company established in another Member State. At Arthur & Marin, we are specialists in European Union law.
Residence permit and work permit for posted workers
As explained above, it is important to distinguish between, on the one hand, the coordination of social security systems between Member States and, on the other hand, the need to obtain a residence permit or visa in the country of destination in order to reside there. It should be recalled that, under the principle of free movement of workers, set out in Article 45 of the Treaty on the Functioning of the European Union, EU nationals may move freely between Member States and provide services in another Member State.
However, the Member States of the European Union provide that foreign nationals who do not hold the nationality of the country of destination and who wish to remain there for more than 90 days, or three months within a 180-day period, must apply for a residence permit, regardless of the reason for their stay, whether for work, studies, research, humanitarian reasons or otherwise. Therefore, a posted worker, whether an EU or non-EU national, must apply to the competent authority of the place where they will temporarily reside for an appropriate temporary residence permit.
In general, EU nationals who remain for less than three months do not need a residence permit. A simple declaration of registration is sufficient, either in the register of foreign nationals or in the population register, depending on the applicable rules. Non-EU nationals, however, require a residence permit in any event. As for EU workers who wish to remain for more than three months, they must apply for a certificate of registration of their place of residence no later than the expiry of the three-month period following their entry into the country of destination. The competent authority of the destination country will then issue the posted worker with a document confirming that registration.
In the case of non-EU workers, as a general rule, the application for a residence permit must be submitted from abroad, which in this case would mean from the country of origin. This is usually done in the form of an application for a D visa submitted to the diplomatic or consular office responsible for the worker’s habitual place of residence. In certain cases, however, the application for a residence permit may also be submitted directly in the country where the worker intends to reside, after arrival. Once residence has been verified, the worker will be entered in the register of foreign nationals and issued with a residence permit.
💡 In general terms, a permit authorising a stay of more than 90 days may be granted for reasons such as employment, studies, traineeships, a “Working Holiday” programme or humanitarian grounds. In the present case, it would be granted for employment purposes.
Formalities in the country of origin and destination for the posting of workers
Formalities to be completed in the country of origin before the posting
As a general rule, the application for posting should be submitted before the scheduled start date of the posting. The application must be made to the competent social security institution or authority, which will issue the A1 Form Certificate, whose validity may extend up to 24 months. A1 form certifies that social security contributions continue to be paid in another EU country. The request for posting and for the maintenance of social security coverage in the country of origin is made through the submission of the above-mentioned European A1 form. The holder of the form, namely the worker, should remain in possession of the original posting certificate throughout the entire posting period.
In addition to this form, it is advisable for the worker to hold a valid European Health Insurance Card, so that they may receive healthcare in the country of destination. The EHIC can be requested through the relevant national social security electronic platform.
Likewise, before the posting begins, it is advisable to verify that the employment contract, labour documentation, residence and work permits — in the case of non-EU workers — payslips, proof of social security registration and documents relating to the temporary assignment are all duly updated and available.
Formalities to be completed in the country of destination for the posting of workers
Before the posted worker begins work in the country of destination, the employer must comply with the formalities required under the national law of that State. In most Member States, this involves filing a prior posting declaration with the competent labour authority. This declaration is usually submitted individually for each posted worker and, depending on the country of destination, includes information relating to the employing company, the worker, the place where the services will be performed, the expected duration of the posting, the local client or contractor, the sector of activity, the type of work to be carried out and, in some cases, the contact person or representative appointed in the country of destination.
In addition, depending on the country and the sector concerned, further obligations may apply. These may include keeping labour documentation available at the workplace, translating certain documents, appointing a local representative, registering on sector-specific platforms, recording daily presence on site, or completing prior identification formalities for workers before the competent authorities. In certain sectors, particularly construction, public works, industrial assembly, logistics or activities considered sensitive from a labour or social security standpoint, additional obligations may arise. Finally, it is necessary to assess whether the employment rules applied by the company in the country of origin are compatible with the minimum mandatory standards imposed in the country of destination.
If they are not, the company must adapt the working conditions during the posting period, ensuring compliance with the mandatory provisions laid down by the legislation and collective agreements applicable in the host State. This may affect, among other matters, minimum wage, salary supplements, sector-specific bonuses, working time, rest periods, holidays, reimbursement of expenses, accommodation, daily allowances and additional statutory or collectively agreed payments.
Legal risks of posting non-EU workers
The posting of non-EU workers within the European Union, when carried out without an adequate prior review, can become a significant source of risk for the company. It is not enough for the worker to hold a residence permit or work authorisation in the country of origin. Nor is it sufficient that an employment relationship exists or that the company has a construction site, client or project in another Member State. In matters of posting, the authorities of the country of destination may verify at any time whether the company has properly complied with all labour, immigration, administrative and social security obligations. Poor planning can lead to inspections, sanctions, financial claims, administrative blockages and even the suspension of the activity in the country of destination.
Main risks for the company
Among the most common breaches are the absence of required certificates, failure to submit the posting declaration, lack of employment documentation available at the workplace, non-compliance with the minimum wage or collective agreements applicable in the country of destination, exceeding the authorised period of stay, or the absence of the necessary permits.
‼️ Specific risks may arise in sectors subject to stricter controls, such as construction, industrial assembly, logistics, transport, public works or subcontracting.
In these fields, the authorities often require additional obligations, such as presence registration systems, prior identification of workers, site-related notifications, appointment of a local representative or document retention duties. The difficulty is that many breaches are not detected at the beginning of the posting, but only later, during a labour inspection, a complaint, an on-site control, a documentary review or a verification carried out by the main client or contractor. By that stage, the company may already be exposed to sanctions and have very limited room to react.
Consequences of an incorrectly prepared posting
A poorly prepared posting may lead to significant consequences for the company, including:
| Risk | Consequence for the company |
|---|---|
| Lack of social security certificates | Possible regularisation of social security contributions in the country of destination. |
| Failure to submit the posting declaration | Administrative sanctions and difficulties in the event of an inspection. |
| Non-compliance with wages or local collective agreements | Wage claims, arrears, interest and possible sanctions. |
| Lack of employment documentation | Presumption of irregularity and greater difficulty in defending the company’s position. |
| Insufficient residence permit or right of stay | Immigration risks for the worker and potential liability for the company. |
| Breach of sector-specific obligations | Suspension of works, specific sanctions or exclusion from the site. |
| Unverified subcontracting arrangements | Liability towards the main contractor or the final client. |
| Lack of tax or employment planning | Unexpected costs, regularisations and reduced profitability of the project. |
In practice, a company that posts non-EU workers without first reviewing the applicable legal framework may face situations in which workers are denied access to the site, documentation is rejected by the client, labour inspections are initiated, financial claims arise at a later stage, or the company is even prevented from continuing to provide services in the country of destination.
Prior review as a protective measure
Before starting any posting, the company must verify not only whether the posting is legally possible, but also how it should be organised safely and correctly. This requires an individual assessment of each worker’s situation, including their nationality, residence and work permits, the duration of the assignment, the country of destination, the specific activity to be performed, the applicable collective agreement, the need for an A1 certificate, the prior posting declaration, sector-specific obligations and the documentation that must be available in the event of an inspection. A prior legal review makes it possible to anticipate risks, correct potential issues before the assignment begins and prevent the company from becoming exposed during the execution of the project.
Practical cases and success stories
In practice, the posting of non-EU workers within the European Union is increasingly relevant for companies operating in construction, industrial assembly, engineering, logistics, technical maintenance and cross-border service provision, especially where their workforce includes third-country nationals who are lawfully employed in a Member State. Below, we present three successful cases handled by our firm that help illustrate how the posting of workers operates in practice.
Example 1 | French company posting non-EU workers to a construction site in Italy
In this practical case, we analysed the situation of a limited liability company established in France, with a large workforce, offices in Paris and Marseille, and subsidiaries in France and Germany. The company carries out construction, assembly and technical project execution activities in several European countries.
At a given stage, the company planned to temporarily post twenty workers to Italy in order to intervene on a construction project. Some of these employees were EU citizens, while another group consisted of non-EU workers who resided and worked in France on the basis of valid residence permits. Among them were workers of Chinese, Albanian, Ukrainian and Senegalese nationality.
In this context, before the start of the assignment, the company had to verify that the non-EU workers were lawfully employed in France, that their residence and work permits covered the entire planned posting period, that the posting was temporary and corresponded to a genuine provision of services, that they could remain affiliated with the French social security system through the relevant A1 certificate, that the prior declarations required by Italy were properly completed, and that the mandatory employment conditions applicable in the destination country were respected, particularly in the construction sector. This case clearly illustrates that the posting of third-country workers within the EU requires a coordinated review of immigration, employment, administrative and social security issues.
Example 2 | Spanish company posting non-EU workers to Belgium for an industrial assembly assignment
Another common situation concerns a Spanish company operating in the installation and industrial assembly sector that secures a contract to carry out works in Belgium over several weeks or months. The company wishes to send part of its workforce, made up of Spanish employees and non-EU workers — for example, Ukrainian, Moroccan or Senegalese nationals — who hold valid residence and work permits in Spain.
In this case, it is not enough to confirm that the workers are employed in Spain. Before the posting, it is also necessary to analyse the validity of their residence and work permits, the obtaining of A1 certificates, the filing of the LIMOSA declaration in Belgium, the obligation to register through Check In at Work, especially if the works are carried out on a construction site or in a sector subject to reinforced controls, the appointment of a contact person before the Belgian authorities, and compliance with the salary conditions, working hours, rest periods and collective agreements applicable in Belgium.
This type of operation requires particular caution because Belgium has a rigorous control system in matters of posting of workers. Any omission may lead to inspections, sanctions and difficulties with access to or continuity of the works. For a country-specific analysis, our dedicated guide on the posting of workers in Belgium may be consulted.
Example 3 | German company posting non-EU technicians to the Netherlands for specialised maintenance
A third example may arise in the field of engineering or industrial maintenance. Consider a German company that provides installation, calibration and repair services for industrial machinery and is instructed to intervene at a plant located in the Netherlands. The company wishes to send several highly qualified technicians, some of whom are third-country nationals — for instance, Turkish, Indian or Serbian citizens — who reside and work in Germany.
In this situation, it is necessary to verify that the technicians maintain a genuine employment relationship with the German company, that the duration of the stay and the planned activity do not exceed what is permitted under their immigration status, that the country of destination does not require an additional prior formality depending on the duration or nature of the activity, that the relevant posting declaration is duly submitted, that the employment documentation required in the event of an inspection is retained, and that the minimum working conditions applicable in the Netherlands are respected.
This example shows that the posting of non-EU workers is not limited to major construction projects. It is also common in technical, industrial and maintenance assignments, where a planning error may delay the intervention, prevent effective access to the worksite or jeopardise the proper performance of the contract with the client.
💡 The key is to anticipate the legal analysis before the posting begins.
Legal advice on the posting of third-country workers
In conclusion, there is no general prohibition preventing an established company from temporarily posting non-EU workers who hold a valid residence and work permit in the country of origin, provided that the posting takes place within the framework of a temporary provision of services and that the conditions required under the applicable EU and national rules are met. In this regard, Regulation (EU) No 1231/2010 extends the application of the European rules on the coordination of social security systems to third-country nationals who, solely on the basis of their nationality, would not initially be covered by those rules, provided that they reside and work legally in the territory of a Member State of the European Union.
Therefore, where a non-EU worker is lawfully employed in the country of origin, registered with the social security system and holds a valid residence and work permit, they may benefit from the European regime applicable to the temporary posting of workers. This includes the possibility of remaining affiliated with the social security system of the country of origin through the corresponding A1 certificate. However, this possibility must not be interpreted as an automatic and unconditional authorisation. Before initiating any posting, it is necessary to carry out an individual assessment of each worker’s situation, including the validity and scope of their residence and work permit, their nationality, the duration of the assignment, the sector of activity, the specific worksite or service concerned, and the particular obligations imposed by the Member State of destination.
Are you planning to post non-EU workers to another European Union country?
At Arthur & Marin, we advise companies that post workers within the European Union, including complex cases involving non-EU employees, residence permits, A1 certificates, prior posting declarations, compliance with employment rules in the country of destination and sector-specific obligations. We are specialists in International Law, Business Law and International Trade Law, and we analyse each case individually in order to verify the feasibility of the posting, identify the legal risks and prepare the necessary documentation before the assignment begins.
Contact us at info@arthurmarin.com or by telephone on +32 465 345 345 for further information.
💡 Every poorly managed posting can turn into a costly sanction. Consult us before the worker crosses the border.
Frequently Asked Questions (FAQ)
What is meant by a posted non-EU worker?
A posted non-EU worker is a worker who does not hold the nationality of an EU Member State, but who legally resides and works in a Member State and is temporarily sent by their employer to another Member State in order to provide services.
Can a company post non-EU workers to another EU country?
Yes, provided that the workers legally reside and work in the country of origin, that there is a genuine employment relationship with the posting company, and that the requirements of the country of destination are met.
Does a non-EU worker need a new work permit in the country of destination?
Not necessarily. Under the Vander Elst doctrine, a Member State may not automatically require a new work permit where the worker is already lawfully employed in another Member State and is temporarily posted to provide services.
Is the social security certificate enough to post non-EU workers?
No. The A1 certificate confirms the applicable social security legislation, but it does not replace the immigration, employment, tax or administrative obligations imposed by the country of destination.
Does the Schengen Area allow a person to work in another EU country?
Not by itself. Schengen facilitates movement and short-term stays, but it does not amount to an automatic authorisation to work and does not remove posting-related obligations.
What is the Vander Elst doctrine?
The Vander Elst doctrine comes from the case law of the Court of Justice of the European Union. It establishes that a Member State may not automatically require a new work permit for non-EU workers who are already lawfully employed by a company established in another Member State and who are temporarily posted to provide services.
What happens if the worker’s residence permit expires during the posting?
If the permit expires during the assignment, the company may face immigration, employment and administrative risks. Before the posting begins, it should be verified that the permit covers the entire expected duration or, where necessary, that the renewal process is started sufficiently in advance.
What should a company review before posting third-country workers?
It should review residence and work permits, social security status, the A1 certificate, the duration of the posting, the prior declaration, minimum wage rules, collective agreements, sector-specific regulations and the documentation required by the country of destination.
Is it necessary to review the specific nationality of the non-EU worker?
Yes. Although the general legal framework may be similar, the worker’s nationality may affect visa requirements, entry and stay conditions, documentation, border controls or specific requirements imposed by the country of destination.
What documentation should the company keep during the posting?
The company should retain employment contracts, payslips, proof of salary payments, the A1 certificate, residence and work permits, the prior posting declaration, identity documents, working time records and any other documentation required by the country of destination.
Must the collective agreements of the country of destination be respected?
Yes, where they apply. In certain sectors, such as construction, industry, cleaning, transport or logistics, collective agreements may impose minimum wages, bonuses, allowances, working time rules, rest periods and specific employment conditions.
How can a lawyer assist with the posting of non-EU workers?
A lawyer can assess the feasibility of the posting, verify residence and work permits, analyse the rules of the country of destination, prepare the necessary documentation, review social security obligations and reduce the risk of sanctions or inspections.
Is it advisable to review each posting on a case-by-case basis?
Yes. There is no single answer that applies to every posting. Each case depends on the country of origin, the country of destination, the worker’s nationality, the duration of the assignment, the sector of activity, the type of contract, the applicable collective agreement and the documentation available.
Applicable regulations
- Consolidated version of the Treaty on the Functioning of the European Union (TFEU).
- Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.
- Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems.
- Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality.
