Posting of third-country nationals from Lithuania to Germany

Temporary provision of services in another member state is possible with a so-called Vander-Elst visa.

Since there is also a shortage of skilled workers in some sectors in Lithuania, Lithuanian companies like to use employees from third countries (non-EEA/EFTA citizens). Time and again, these companies approach us with the question: how and under what conditions can they then send those employees to Germany, for example, to provide services there at short notice. The reason for this question is that the Lithuanian residence permits of employees are not necessarily also valid for Germany.

A special instrument is available for this constellation: the so-called Vander-Elst visa. The name of the visa goes back to a ruling by the ECJ in the Raymond Vander Elst case in 1994.
A Vander Elst visa is a type of visa or work permit for third-country nationals who are employed by and work for a company in a member state (EU/EEA/EFTA). The visa allows them to work for that company in another member state as well, provided they meet certain requirements.

Workers who are EU citizens (nationals of Lithuania or another EEA country) naturally do not need a residence or work permit to work temporarily in Germany during a posting.

A third-country national who is posted from Lithuania to Germany within the company, e.g. to a branch office or a subsidiary, in order to provide a temporary service does not usually need an additional visa either.

Employees from third countries can also be posted from Lithuania to Germany without an additional visa if
– they have a permanent residence permit in Lithuania (more than 5 years) and
– the temporary activity in Germany does not last longer than 3 months within a period of 12 months.

However, if the posting to Germany is expected to last longer than 3 months within a period of 12 months or if the employee only has a temporary residence permit in Lithuania (up to 5 years), a Vander Elst visa must be applied for at the German embassy in Vilnius. This does not necessarily require a period of previous employment in Lithuania.

Vander-Elst visas are not issued for temporary employment, but such a posting would be inadmissible anyway, as Lithuanian law prohibits the employment of third-country nationals as temporary workers.

The Vander-Elst visa is therefore not suitable for the permanent employment of third-country nationals in Germany via detours (via the supposedly more immigration-friendly Lithuanian migration law), but it is an effective instrument for Lithuanian companies that frequently carry out cross-border assignments in Germany and are dependent on skilled workers from third countries for this purpose.

Sources:

Ordinance on Employment of Foreigners in the Federal Republic of Germany
Act on the Residence, Employment and Integration of Foreigners in Federal Territory of the Federal Republic of Germany
Residence Ordinance of the Federal Republic of Germany

 

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