Van Der Elst Application in Malta

Dr. Jean-Philippe Chetcuti | 07 Sep 2015

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The Van der Elst Process in a nutshell

Before reviewing the Van der Elst Application in Malta, let us look at the origins of this Ruling.  The Van der Elst Application process derives from a 1994 ruling by the European Court of Justice (ECJ) regarding the right of an EU company to provide services within the EU. The ECJ stated that in accordance with the principles of freedom to provide services and the principle of non-discrimination, a non-EU national who is employed by a company in one EU country must be allowed to provide services to a company in another EU country for a limited period without the need for a work permit.

ECJ judgments indicate that to qualify, the employee must have been lawfully and habitually employed by the company prior to being posted.

As a rule, non EEA nationals need a Schengen visa to enter and stay in the Schengen Area for up to 90 days in any 6 month period. After 90 days, the employee will need a residence permit.

The Van der Elst Ruling

The European Court of Justice Judgment issued on 9 August 1994 a ruling in the Case C 43/93, Raymond Van der Elst v Office des Migrations Internationales, where it confirmed that Articles 59 and 60 of the EEC Treaty must be interpreted as precluding a Member State from requiring undertakings which are established in another Member State and enter the first Member State in order to provide services, and which lawfully and habitually employ nationals of non-member countries, to obtain work permits for those workers from a national immigration authority and to pay the attendant costs, with the imposition of an administrative fine as the penalty for infringement. The requirements of such a system are more onerous for undertakings established in another Member State, than they are for providers of services established within the host State and go beyond what may be laid down as a precondition for the provision of services.

The principle set forth by the ECJ has been incorporate and implemented in different ways by Member States. Below is a summary of the current status of implementation.

VDE Eligibility Criteria in Malta

An employee being posted to Malta from an EU/EEA country is not required to apply for a working licence in Malta.

In the case of a third country national employee who is employed by a posting undertaking that is established in an EU/EEA country, there is no need to go through a working license procedure in Malta, if such posted worker already holds a working license issued in the country where the posting undertaking is established.

For any foreign national who is posted in Malta by an undertaking established outside an EU/EEA country, a working license is required to be issued by the Employment and Training Corporation.

Van der Elst Procedure in Malta

In any case of a posting in Malta, the undertaking posting the worker is to notify the Director of Industrial and Employment Relations (DIER) of its intention to post a worker in Malta.

Requirements and documents

A ‘Notification of a Posted Worker to Malta’ form must be completed, accompanied with a copy of the posted worker’s employment contract with the posting undertaking and in the case of a third country national posted employee from an EEU/EEA country, also with a copy of his existing working license, should reach the Department of Industrial and Employment Relations prior to the commencement of the posting.

The undertaking making use of the services of the posted worker is obliged to keep a copy of such Notification Form at the place of work for monitoring purposed by the inspector of the Department of Industrial and Employment Relations.

In addition to the ‘Notification of a Posted Worker to Malta’ form, one must attach:

  1. The name, registration number and registered place of business of the employer and the identity card number, sex and address of the employee and the place of work
  2. The date of commencement of employment
  3. The period of probation
  4. Normal rates of wages payable
  5. The overtime rates of wages payable
  6. The normal hours of work
  7. The periodicity of wage payments
  8. In the case of a fixed term contract of employment, the expected or agreed duration of the contract period
  9. The paid holidays, vacation, sick and other leave to which the employee is entitled
  10. The conditions under which fines may be imposed by the employer
  11. The title, grade, nature or category of the work for which the employee is employed
  12. The notice periods to be observed by the employer and the employee should it be the case
  13. The collective agreement, if any, governing the employee’s conditions of work
  14. Any other relevant or applicable condition of employment

In the case of a worker being posted to provide training with an undertaking in Malta, and the posting period does not exceed an aggregate period of 20 working days over one year, commencing from the initiated date of posting to Malta, only (a), (b), (f), (h) and k are required.

How long can the posting last?

Under the case law of the ECJ, the temporary nature of an activity carried out on the territory of a Member State cannot be determined abstractly but should be judged on a case by case basis depending on the duration, frequency or continuity. This is also the position in Malta, the department valuates applications by a case by case basis. Generally, the duration lasts 2 years. If the activity in Malta can no longer be considered as being exercised temporarily, but is stable and continuous, all binding rules in Malta shall apply.

What is the position for family members?

Family members (spouse, minor child, dependent child over 18 years are to apply for a family permit of stay.

Remarks and practical problems

A posted worker has the right to institute proceedings in the courts of Malta to safeguard any rights granted to him by virtue of Legal Notice 430 of 2002.

This article was produced by Dr Jean-Philippe Chetcuti and Dr Antoine Saliba Haig as part of an international comparative study, lead by Italian immigration lawyer Marco Mazzeschi for the Lexis Nexis article entitled Mobility of non-EU workers within EU--implementing Vander Elst published by LexisPSL Immigration on 13/11/2014.

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Key Contacts

Dr Jean-Philippe Chetcuti

Senior Partner, Tax & Immigration

+356 22056111

Dr Priscilla Mifsud Parker

Senior Partner, Corporate, Tax & Immigration

+356 22056122

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