When do you need a Van der Elst visa?

If you have a Hungarian company with third-country nationals working for you in Hungary, they might need a Van der Elst visa when they are posted to another EU country. Get a quick overview of how that works.

Third-country nationals working in Hungary

Third-country nationals need a work permit to be employed at a Hungarian company. The work permit will be tied to the employer, and will be valid for 1 or 2 years, but can always be renewed. If the employee wants to switch to another employer, they will have to apply for a new work permit with their new employer-to-be.

Posting or secondment in other EU member states

In some cases, you might need your employees to provide services on behalf of your Hungarian company to clients located in other EU member states. That is called posting, or secondment. Thanks to free movement within the Schengen zone, all of your employees can travel anywhere within the Schengen zone without a visa, which includes those who are in Hungary with a work permit as well. However, all of them might need additional paperwork depending on the length of their stay and the host country.

Some essential questions to consider:

• The place of work is a statutory element of the labor contract. The employer can appoint a different place of work (which can also be in another state), but if the employee must spend there more than 44 days in a given calendar year, there needs to be a written agreement of this. If the place of work changes permanently, the labor contract must be modified.
• Depending on the length of the stay, the employee may become a tax resident in the host country, which would change how and where their taxes must be paid. The rule of thumb is spending there more than 183 days in a 12-month period, but make sure to check the regulations of the host country before the posting.
• When your employee is carrying out work in a different country, the local regulations apply to their work. This might be most obvious in minimum wages, mandatory rest periods, and occupational safety measures.

Posting third-country nationals in other EU countries

Based on the right of free movement within the EU, you can post your third-country national employee in another EU member state, same as if they were EU citizens. However, this might require additional paperwork, depending on the

• Length of stay
• Host country

Some EU member states, such as Germany and Ireland, require an extra visa for such postings, referred to as a Van der Elst visa. This is a document to be obtained by third-country nationals who already have Hungarian residency based on the work they do for your Hungarian company.

The name refers to the case of Raymond Van der Elst, a Belgian employer of Moroccan citizens who at one point needed to perform work on his behalf in France. The workers were first fined by the local authority, but Van der Elst appealed the decision at the European Court of Justice and won. The 1994 verdict confirmed that third-country nationals with an EU work-permit are allowed to perform work of behalf of their employer in other EU member states for a limited time.

Will your employee need a Van der Elst visa?

Your employee will only need a Van der Elst visa upon being posted in an EU member state other than Hungary if they are not an EU citizen and if this is a requirement in the host country. When planning a secondment, make sure to consult your accountant, and possibly another expert on taxation, social security, and immigration law to see what preparations are necessary, and what costs are to be expected.

Helpers Hungary can give you this kind of support too. We have more than 15 years of experience providing business and immigration assistance to foreigners living, working, and doing business in Hungary, and we have developed solutions for the entire life cycle of a business, from company setup through accounting and HR support to liquidation.

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