Van Der Elst Permit in Italy
Van Der Elst permit in Italy: Under the principle of free movement of services within the European Union, companies established in a Member State should have the right to provide services in another EU Member State without needing to obtain a separate work authorization for their non-European employees. This principle, known as Van Der Elst, originated from a 1994 ruling by the European Court of Justice (ECJ), aimed at facilitating companies established in the EU to temporarily post their non-EEA employees, already holding a work permit from another member state, across the EU without incurring additional bureaucracy.
How Was This Received by the Italian Legislation?
Italy incorporated the Van Der Elst principle into national law via Law 46/2007, under Article 27(1-bis) of Legislative Decree 286/1998, for service provision under existing agreements. The Italian host company must file an online transfer notice under its legal representative’s name and submit required documents to the authorities:
- Service Agreement Contract: Detailing the number of employees, the duration of the temporary period, and the services to be provided between sending and receiving entities;
- Support Letter: From the sending entity confirming the conditions of the deployment;
- Notification to Trade Unions: From the receiving entity;
- Social Security Evidence: Such as a certificate of coverage;
- Valid Work Authorization: From the EU Member State where the sending entity is based.
Filing the online notice of transfer is mandatory for both visa and non-visa nationals, for short-term (within 90 days) and long-term mobility (over 90 days).
Article 27 quinquies: Short-Term Work. Might this still be considered a byproduct of the Van der Elst implementation?
Additionally, Article 27 parapgraph quinquies (legislative decree 286/1998 and its subsequent amendments) provides the possibility for non- EU employees of working in Italy for short periods for the provision of services based on an intra-company assignment. Managers, specialists, and trainees holding an EU ICT Permit from another EU country may work at a related company in Italy for up to 90 days without a visa or permit.
The main requirement is submitting a declaration of presence to the local police within the first 8 days of arrival in Italy.
Reality Check
Despite being implemented in 2007, the Van Der Elst procedure faces several practical challenges in Italy due to the implementation of such an immigration scheme:
Work Start Delays: Employment can only begin after an Immigration Office appointment and residence permit registration, limiting the procedure’s efficiency.
Residence Permit Issues: Without a visa or work authorization, Immigration Police may reject the residence permit application, citing the absence of required documentation.
Directive Compliance: Obligations under Decree n. 136/2016 (EU Posted Workers Directive) apply to Service Agreement assignments, adding complexity to the process.
Conclusive remarks
While the Van Der Elst principle aims to facilitate the free movement of services and worker mobility within the EU, its implementation in Italy, mostly under Article 27, paragraph 1-bis, presents various challenges and practical issues, which acts as a deterrent, and for the time being should induce corporations to lean towards more familiar allies such as a standard service agreement pursuant art. 27 clause i of the legislative decree 286/1998.
