In principle, a worker from a third country must have a combined permit or a work permit to be allowed to work in Belgium.
But what if a Slovenian company has been satisfied with its Brazilian employees for years and wants to deploy them for a temporary assignment in Belgium? Do these Brazilian workers then have to wait months for a work permit or combined permit?
There is an exception: the so-called “Vander Elst exemption.” This article discusses the conditions of this exemption and concludes with a practical example.
Workers from Third Countries
Workers from third countries (persons with a nationality other than that of a Member State of the European Union, Norway, Iceland, Liechtenstein, or Switzerland) face various obstacles when they want to work in Belgium. Not only do the different national languages and administrative complexity pose challenges, but the required permits also make Belgium less attractive. This complicates the provision of services by European companies employing workers from third countries.
An Exemption Under Conditions
There is an exception to the above rule for European companies: the so-called “Vander Elst exemption.” The European Court of Justice introduced this exemption, believing that requiring a work permit in certain situations would excessively hinder the free movement of services. However, the Court set several conditions, later incorporated into regional legislation.
More specifically:
- The worker is employed by a company established in a Member State of the European Economic Area (EEA) or Switzerland (for example: the Brazilian worker Carlos works for the Slovenian company "SLOVAKA" in Slovenia);
- The worker is sent to another European Member State to provide services on behalf of their employer (in our example: Carlos comes to Belgium to help build a new bicycle path in Antwerp);
- The worker has a right of residence of more than three months in the country where they reside (Carlos has a two-year residence permit in Slovenia);
- The worker is legally employed in the Member State where they reside (Carlos meets all requirements to work legally in Slovenia);
- The worker has a valid and regular employment contract;
- The worker has a valid passport and residence permit until the end of the assignment, ensuring they can legally return (Carlos can return to Slovenia after his work in Belgium);
- The worker must register within three days after arrival at the municipality where they will reside.
Not only must the employer possess the aforementioned documents to limit liability, but they must also meet certain administrative requirements:
- The employer must file a prior DIMONA declaration (an electronic notification by which the employer reports every hiring and termination of an employee to the NSSO);
- The employer must have an A1 document or proof that the application has been submitted (this document confirms the social security scheme applicable to the worker).
However, the "Vander Elst exemption" only applies to short-term assignments in Belgium. If the Belgian project exceeds 90 days, the worker must apply for a change of status at the municipality.
A Case Study: The Over motivated Police Officer
The "Vander Elst exemption" can sometimes lead to problems due to a lack of knowledge or understanding. For example, an Albanian worker from a Croatian company was arrested, interrogated, and detained with an order to leave the territory. The reason? He did not possess a work card or single permit.
Nevertheless, both the employer and the employee met all the requirements of the "Vander Elst exemption." There was a copy of a valid passport, a Croatian residence permit, a regular employment contract, proof of affiliation with the Croatian social security system, a Limosa declaration, etc.
The Council for Alien Law Litigation ruled as follows:
"However, the fact that the applicant does not have a professional card, work card, or single permit, in itself and given the challenge brought forward by the applicant, is not sufficient to justify the issuance of an order to leave the territory under Article 7, first paragraph, 8°, of the Aliens Act" (CALL, March 24, 2023, 286 626).
Attention and Good Preparation Are Necessary
The "Vander Elst exemption" offers a valuable solution for European companies working with international employees to facilitate temporary assignments in Belgium. However, we observe that uncertainty about the application of this exemption sometimes leads to legal problems.
Are you unsure whether your company or employee qualifies for the "Vander Elst exemption"? Or are you facing administrative or legal obstacles when applying it? Contact Vanbelle Law Boutique. We are happy to assist you in completing the procedure correctly and efficiently.
