Germany becomes subject to an infringement procedure by the European Commission (ref. INFR (2025)4025)
On 30 January 2026, the European Commission formally called on Germany to end its violation of the Treaty principle of free movement of services. The European Commission considered as such the statutory German requirement to obtain an additional visa for third-country nationals employed in other Member States, while they have a legal residence title and a work permit issued in that other Member State. According to the European Commission's reasoning, the additional visa requirement is an excessive administrative barrier that is not supported by European law on the posting of workers.
The Vander Elst visa in Germany - why is it so controversial?
The procedure for obtaining a so-called Vander Elst visa is regulated in § 6 of the AufenthG (Act on the Residence, Professional Activity and Integration of Foreigners in the Federal Republic of Germany). The provision stipulates that a foreigner must obtain a Schengen visa for a stay of up to 90 days in Germany. According to the European Commission, the provision in question is contrary to Article 21 of the Convention Implementing the Schengen Agreement, which provides for 90-day visa-free travel in any 180-day period. In addition, a violation of Article 56 of the TFEU, the principle of free movement of services, is claimed. The German Vander Elst procedure is accused of being disproportionate as it requires very strict conditions to be met in practice. In practice, the administrative procedure for obtaining this visa is also extremely time-consuming and requires the personal presence of the employee at a German diplomatic mission. In turn, failure to hold a Schengen visa can, in extreme cases, result in the expulsion of the posted foreign national from German territory with a temporary ban on re-entry.
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European Commission infringement procedure against Germany
The questioning of the Vander Elst procedure has been awaited for many years by Polish entrepreneurs who temporarily provide services with their employees on German territory. Such a requirement of German migration law has for years created a high barrier to entry into the German market for entrepreneurs from other Member States. In the case of Poland, the European Institute for Labour Mobility points to billions of euros of losses for the entire posting of workers industry. In the current situation, thanks to the determination of the European Commission, the failure to repeal the Van der Elst visa regulation will result in a complaint to the CJEU. If the CJEU finds that Germany has failed to comply with the obligations of the Treaty on the Functioning of the European Union, Germany will ultimately be obliged to repeal the Schengen visa procedure on pain of financial sanctions.
Previous requirements for obtaining a Vander Elst visa
German legislation currently stipulates a number of formal requirements for an application for a Vander Elst visa. A correctly submitted application should submit, among other things: two up-to-date biometric photos, a valid passport, a residence and work permit issued in another Member State, a certificate of residence in another Member State, as well as the posting company's contracts with the contractor, an employment contract, a certificate of payment of social security contributions, proof of social security coverage in Poland (A1 document).
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Vander Elst visa - German embassy and waiting times
The application must be submitted directly to the designated consular post, i.e. the German embassy or the consulate responsible for the employee's place of residence. In practice, the waiting time for a Vander Elst visa - counting from the appointment at the embassy to the issuance of the visa - makes the whole procedure unduly burdensome.
Interestingly, there has been recent case law from the German administrative courts indicating that excessive waiting times at the embassy are in breach of the EU principle of freedom to provide services (Hessischer Verwaltungsgericht order of 26 March 2025 ref. 3 B 1615/23). The court considered, against the background of previous CJEU case law, the possible disproportionality of the Vander Elst procedure on the grounds that the state has other, less onerous methods to control the regularity of the posting. In this context, it is increasingly discussed whether the Vander Elst visa - exceptions to its obligation - could be regulated explicitly, e.g. for workers holding a national visa or a long-term residence permit issued by another EU state.
The Vander Elst visa and the case law of the Court of Justice of the EU
The scope of the information obligation of the undertaking posting workers as well as the permissible methods of administrative control of the regularity of the posting are now covered by EU harmonisation through Directive 96/71/EC and amending Directive 2018/957. The Directives provide for the proportionality of the measures and sanctions to be applied. The indicated regulation fulfils the standard of the principle of freedom to provide services as expressed in the case law of the Court of Justice. In the Raymond Vander Elst case (C-43/93), the Court indicated that the requirement to obtain a work permit for a posted foreign national lawfully employed and residing in the country of establishment of his employer is incompatible with the principle of the free provision of services. The liberal line of case law was subsequently reiterated in Commission v Luxembourg (C-445/03) and Commission v Federal Republic of Germany (C-244/04). There, it was held that a regulation which made the permissibility of posting foreign nationals subject to other arbitrary conditions, such as obtaining an individual permit, obtaining a bank guarantee or a one-year period of employment in the posting state, was contrary to the freedom to provide services.
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Position of the German authorities on the Vander Elst visa
For years, the German authorities have presented a position confirming, in their view, the legality of the use of the Schengen visa for posted aliens prior to their arrival in Germany. According to them, this visa is not a residence title in its own right, so that Germany cannot be accused of failing to mutually recognise standards for the legalisation of residence and work. In the context of the legal construction of the visa in § 6 AufenthG and the well-established case law of the Court of Justice, this position would have to be regarded as unfounded.
From the entrepreneur's perspective, obtaining a visa for an employee is a prerequisite for the permissibility of providing services with foreign nationals in Germany. The obligation to obtain a visa makes the provision of services by means of third-country workers less attractive compared to the posting of other workers - citizens of Member States.
Prospects for Polish entrepreneurs posting workers to Germany
The commitment on the part of the European Commission, given the current line of rulings of the CJEU in similar cases, gives hope for a favourable judgment for thousands of Polish entrepreneurs doing business in Germany.
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If you are an entrepreneur interested in expanding into the markets of European countries, the International Law Firm is ready to assist you in turning your dreams into a viable business plan. By using non-obvious and niche legal solutions, we are a team of specialists who provide legal representation before the German authorities overseeing the posting of workers.
