Posting third-country nationals from Switzerland to Lithuania is finally possible, now that greater legal certainty is available following the correcting of a legal error.
The temporary cross-border provision of services within the EU is something which is protected by the freedom to provide services, something which may not in principle be restricted. This also means that third-country nationals who are legally employed in a company which is located within a member state and who are posted to another member state with the intention of providing services on a temporary basis do not require a further work permit from that second member state, an issue which has already been decided upon by the ECJ in 1994 in what is generally known as its ‘Vander Elst’ decision.
Nevertheless, member states have always tried to maintain certain control mechanisms. In particular this involves checking upon whether the provision of services is only temporary or whether the company behind any employee postings is abusing the freedom to provide services in order to circumvent migration rules within the member state to which the employee is to be posted.
Germany, for example, carries out a strict preliminary check with its commonly-named ‘Vander Elst’ visa (see https://bnt.eu/legal-news/lithuania-posting-third-country-nationals-to-germany-is-complicated-but-feasible/). Lithuania, on the other hand, takes a much more liberal approach. It stipulates that companies which are based in EU or EFTA member states (including Switzerland) and which post employees who are third-country nationals to Lithuania are exempt from the requirement to obtain a Lithuanian work permit. As proof that no work permit is required, it is sufficient to present an A1 or E101 certificate from the home member state which proves that the employee is socially-insured there and will remain so for the duration of their temporary cross-border business trip. The basis for this is ‘Regulation (EC) No 883/2004 of 29 April 2004 on the coordination of social security systems’ which, amongst other things, regulates when, how and, above all, where employees are covered by social security when working across borders.
This pragmatic solution has had quite a level of appeal because, by issuing an A1 certificate, the home member state has in essence already checked on whether the employee in question is properly employed in the home member state and is only temporarily being posted to Lithuania.
However, there was a catch, with this involving Switzerland as a special case, something which the Lithuanian legislator had apparently overlooked.
It is accurate to say that, according to the ‘Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons’, both the freedom to provide services and the associated ‘Vander Elst’ case law are also applicable to a limited extent to Switzerland, and ‘Regulation (EC) No 883/2004’ also applies in Switzerland, so that A1 certificates can in principle be issued. However, a crucial detail is missing. Switzerland has not implemented ‘Regulation (EU) No 1231/2010 of 24 November 2010’, which extends ‘Regulation (EC) No 883/2004’ and therefore the option of being able to issue an A1 certificate to third-country nationals in addition to EU citizens. This means that third-country nationals who were posted from Switzerland did not need an additional work permit in Lithuania and therefore did not receive one. On the other hand, however, they would not have been able to prove that they were legally working in Lithuania.
What was required was an odyssey through the various Lithuanian authorities (the social security authority, Sodra, the state employment agency, Užimtumo tarnyba, and the Lithuanian migration authority), because none of these authorities felt able to or responsible for issuing a confirmation that the respective third-country national was legally allowed to work in Lithuania despite the lack of an A1 or E101 certificate.
But once again Lithuania took a pragmatic approach and added the following sentence to the relevant Article 58 of the ‘Law on the Legal Status of Foreigners’ in June 2024, just a few months after the issue first arose:
‘If the foreign individual in question is not covered by Regulation (EC) No 883/2004, they must obtain a certificate which has been issued by the competent authority of the relevant member state of the European Union or of the European Free Trade Association which is responsible for determining applicable law in accordance with Regulation (EC) No 883/2004 which certifies that they are covered by social security in the European Union or European Free Trade Association member state within which the undertaking sending them for work is established.
This makes life significantly easier for Swiss companies which post employees who are third-country nationals to Lithuania, as they no longer have to contact the Lithuanian authorities in each individual case to confirm that the third-country national in question is legally entitled to work in Lithuania on a temporary basis. Confirmation from the Swiss ‘Ausgleichskasse’ to state that the employee is properly insured in Switzerland is sufficient. However, the Lithuanian legislator has not yet specified the form in which this certification must be presented in individual cases. As a precaution, it is therefore recommended that the employee be given at least a copy and a translation into Lithuanian for the trip to Lithuania.
Source:
Law of the Republic of Lithuania on the legal status of aliens