Third-country nationals with a temporary residence permit in Lithuania cannot be posted to Germany without further ado.
With the lifting in Lithuania in 2022 of the approximately three-year ban against issuing temporary residence permits to temporary workers who come from third countries, many Lithuanian companies had hoped to be able to hire workers more easily in order to temporarily send them to Germany.
However, one fact which is often overlooked is that employees from third countries who have a temporary residence permit in Lithuania can in principle travel to Germany, although they do not have permission to work there.
It is true that EU companies which provide cross-border services may not be restricted if they use employees from third countries to do so. The ECJ made this clear back in 1994 in what is known as the Vander-Elst ruling. Accordingly, Germany may not request an additional German work permit for these employees.
However, Germany has always interpreted the ruling somewhat restrictively and, when compared to many other EU member states, has introduced a preliminary check to determine whether the company is actually right to invoke its freedom to provide services – the so-called Vander-Elst visa.
The visa application is submitted to the German embassy. The applicant is the employee who is to be posted and, according to current embassy practice, a personal appointment is compulsory.
Although actually only permitted by the ECJ as a pure control against potential abuse, the Vander-Elst visa is regarded by German embassies and authorities as a form of visa with a permit to work. It is not possible to obtain the visa retrospectively. The consequences of not obtaining a visa can be draconian: on the one hand for the employee, and on the other hand for the Lithuanian employer and possibly the German hirer.
The background to this is the fact that, if the employee works without this visa, their entire stay in Germany will be illegal. For the Lithuanian employer, this means that they are allowing an employee to work in Germany who does not have a legal residence permit.
The employee will face deportation from and a ban on re-entering Germany. For the employer, especially in the temporary employment sector, penalties range from 500,000 EUR to imprisonment for the managing director, depending upon how many employees have been hired in this way.
The visa is issued for a maximum period of twelve months. A follow-up visa can be issued in individual cases if the project in Germany can be proven to last longer.
The decisive factors for the application are, above all, the presentation of the service contract at the time of application and the presentation of an A1 certificate.
According to current practice it must be clear from the overall circumstances that the employer and employee have their main activity in Lithuania and are only being sent to Germany for a clearly-defined project.
What is rather easy to present for construction projects and the like is rather difficult for other services, especially temporary employment.
Nevertheless, it may be possible in individual cases if it can be proven that the employer and employee have their main activity in Lithuania. Indications which would speak against this, however, would be, for example, if the employment contract is only limited in time for the intended period in which the employee is to work in Germany or if the employee’s temporary residence permit in Lithuania only has a period of validity which corresponds to the posting to Germany.
A well-prepared and complete application for a Vander-Elst visa is therefore crucial. The information which has been published on the website of the German Embassy in Vilnius provides guidance: