The Court in Amsterdam has nullified several fines this week. The fines were imposed based on the Employment by Foreign Nationals Act (Wav), which specifies when a foreign worker is permitted to work in The Netherlands.
The cases involved multiple companies. To begin with, a German company had provided a Chinese IT specialist, to carry out a job assignment with a Dutch company. In doing so, it had used the services of a Dutch employment agency. However, the IT specialist did not have a work permit to carry out the assignment.
The Inspectorate of the Ministry of Social Affairs and Employment (SZW) had ruled that the IT specialist had entered the Dutch labor market for non-temporary labor, and therefore a work permit should have been required. As a result, fines were handed out to all companies. These companies then went to court.
“The Court has ruled that the making available of workers falls under the rules of the European freedom to provide services, thereby referring to judgement in the case Essent,” according to Everaert Advocaten.
The Essent-arrest is a judgement of the European Court in Luxembourg, ruling that a company in a first EU member state may make available its legal third country workers to a company in another EU member state.
The Dutch law, which stipulates that a work permit is required for labor carried out by a foreign national may not stand in the way of this freedom.
“Thus, legal workers within the EU who are made available to another company in the EU do not need a work permit, and therefore a fine could not be imposed."
This is how he Court in Amsterdam has reasoned, and the fines must be returned.
The full judgement can be seen here. The Inspection did not go to appeal.
For more information, please contact Bram van Melle.