On November 4, 2015 the Council of State gave its decision on the question whether fines could be imposed for work done by a Bulgarian national who did not hold a work permit. The Inspectorate had fined several companies in the real estate and construction industry.
Our lawyer, representing these companies, had argued that this Bulgarian had done his work as an independent contractor, which he could do after Bulgaria’s accession to the European Union. More sweepingly, he argued that following their country’s accession to the European Union Bulgarians should be able to move freely on the employment market. He referred to the priority principle, stating that if Japanese citizens are free to move on the employment market, meaning they may work without work permits, the same should go for the new EU citizens. He furthermore stated that the Netherlands had no right to extend the term within which new EU citizens could not work. This would have been permissible only if otherwise the employment market would have been seriously disrupted or at risk of being so as a result. According to the European Commission this was not an issue.
The Council of State held that only if everyone outside the EU would have free access to the employment market – and not just that specific group of Japanese - , the same should apply to the new EU citizens, including Bulgarians in that period. As this general group requires work permits, the same could be required of the new EU citizens, so the Council of State ruled. Referring to a letter from the Minister, the Council of State furthermore held that the Netherlands had the right to extend the period during which work permits were required from five years by another two years. As the Council of State did not believe that this Bulgarian was working as an independent contractor the Council of State held that the Inspectorate was right to fine the companies .
The decision of the Council’s division is at odds with the expert reports of two professors.