Vander Elst: posting third country nationals to Germany or Austria without a work permit

A company established in one EU member state may post its lawfully employed third country nationals to Germany or Austria for a service contract, and the host state may not require its own work permit. That follows from the judgment of the Court of Justice of 9 August 1994 in case C-43/93 (Vander Elst). Notification and evidence duties still apply in full.

What the Court decided in 1994

In case C-43/93, judgment of 9 August 1994, the Court held that it breaches the freedom to provide services for a member state to demand a national work permit from a company established in another member state for its duly employed third country nationals. The legal basis was Articles 59 and 60 of the EEC Treaty, today Articles 56 and 57 TFEU.

The reasoning is short and it still decides every individual file. Posted workers are not seeking access to the labour market of the host state. They perform a service for their employer in the sending state and return there once the contract is complete. A host state labour market test therefore applies to a situation it was never designed for.

The judgment and the case law that followed it set three conditions the posting company must be able to evidence:

• The posted third country nationals are in stable and lawful employment in the sending state, not hired specifically for the assignment in the host state.
• They hold a valid residence and employment title in the sending state covering the entire duration of the posting.
• They return to the sending state once the service is provided; the posting is tied in time to the contract.

A company that cannot show all three falls outside the Vander Elst situation and back into the ordinary permit law of the host state, with the labour market test and the waiting time that come with it.

Entry into Germany, confirmation and notification in Austria

The permit exemption does not answer the question of entry. If the posted worker holds a residence title of the sending state that allows visa free travel within the Schengen area, that title carries the entry. Where no such title exists, a Vander Elst visa can be applied for at the competent German mission abroad. The corporate portal of Techniker Krankenkasse describes this visa in 2026 as the route by which posted third country nationals of an EU service provider enter Germany for the duration of the contract.

The mission checks exactly the three points above. The file normally contains the service contract with the German client, the employment contract in the sending state, the residence title held there, proof of social security cover, and the place and period of the assignment. The fee for a national visa under the fee schedule of the Federal Foreign Office is 75 euro, and companies should plan several weeks for the appointment and the decision, depending on the mission. Social security runs in parallel through the A1 certificate, set out in posting to Germany and Austria.

Austria handles the same facts through two separate instruments, and both are regularly missed. No employment permit under the Aliens Employment Act is required for a posting of this kind. Instead the public employment service AMS issues an EU posting confirmation under section 18 paragraph 12 AuslBG. Separately, the Wage and Social Dumping Act requires the posting to be notified to the Central Coordination Office, the ZKO notification, before work begins. The business service portal USP.gv.at lists both duties side by side in 2026.

The most common mistake is identical in both countries. A company reads the judgment as a blanket exemption and sends its people to the site with no confirmation and no notification. The inspection, by the German customs unit for undeclared work or by the Austrian control bodies, then finds no labour market breach at all but a failure of the notification and document holding duties, which carries its own penalty. How such an inspection runs in Austria is set out in the wage dumping act inspections.

Where the route fits and where it does not

Vander Elst carries a genuine service contract with a deliverable of its own: installation of supplied equipment, maintenance, a defined construction work. It does not carry hiring out of labour, where the posted worker is integrated into the client's organisation and follows the client's instructions. In an inspection that distinction decides more than any form, because it determines whether a service within the meaning of Articles 56 and 57 TFEU exists at all.

For companies weighing a direct hire in the second member state against a posting out of the first, the calculation usually turns on duration. A contract of a few months carries the posting; a permanent position needs the ordinary permit route of the destination country, whose processing times are compared in the timeline corridor by corridor.

If you are testing whether a specific contract in Germany or Austria can run under Vander Elst, the contract type, the duration and the residence title in the sending state are the three inputs that settle the answer. Our team maps them to the competent offices (employers).