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.
A cross border service contract includes 3 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.
Since 1 January 2017 the following additional conditions apply:
- a posted non-EU labor migrant may not be replaced by another non-EU labor migrant if, by doing so the notified total duration of the agreed service would be exceeded
- the job in the Netherlands must be similar to the job generally carried out in the member state where the employer is established
- the employer must be actually and substantially active in the member state from where he posts the employee. Inspectorate SZW monitors company activity and assesses company data such as location, financial transactions, turnover and the nature of the corporate activity
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.