Employers in the EU can temporarily post their non-EU employees (third country nationals) to the Netherlands without the requirement of a work permit. This type of employment is called cross border service provision.
The following questions must be answered to determine the course of action:
- is the non-EU employee allowed to work in the Netherlands without a work permit?
- is a notification required for the posting of either a non-EU or an EU employee?
A cross border service contract includes three parties; employer (A) in an EU member state temporarily assigns one or more of its non-EU employees (B) to carry out work for employer (C) in another EU member state.
This type of service provision is also referred to as the posting of workers. Posting workers within the EU is regulated in the Posting of Workers Directive.
It is important that the employees legally reside and work in the country where the foreign employer is established. The employer who posts the workers must be able to demonstrate corporate activity in the same country. These conditions are there to prevent activity of mailbox firms.
The exemption of a work permit in case of cross border service provision was laid down by the Court of Justice in Luxemburg in the case Essent, 2014. This case was advocated by Ted Badoux of Everaert Advocaten.
The ruling was ground-breaking and was picked up by national media.
The exemption is now laid down in the Decree on Foreign Nationals and Executive Decree on the Work by foreign nationals Act. It was published in State Newspaper 348 (in Dutch). The legislation also includes the requirements that are effective per next year.