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AuthorPost
zimbo
Junior Member
Member # 7308
Posted December 04, 2003 03:32 PM
Dear Friends,

What is best way of working (IT Contracts) in Europe(Ger,fr and Hol) if I only have ILR(from UK).

I heard that german law only accept people with EU passport!

Can someone pls advice on how I (and hopefully others in this ILR limbo) can overcome this speculative problem.

Note: My querry is only on IT consultancy and not Permanent Positions.

Cheerio

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We live in a shrinking world. Eventually Immigration becomes irrelevant issue.

Thorsten von Thyssen
Member
Member # 4397
Posted December 04, 2003 03:46 PM
Steps:

1. Establish a company in the UK (UK company).
2. Get contract in another EU country.
3. Ask a Vander Elst visa to work in that country. According to ECJ ruling this visa must be granted to you.

Case C-43/93 - Vander Elst.
Mr Vander Elst, an employer of Belgian nationality established in Belgium, operated a specialist demolition business in Brussels. In addition to Belgian nationals, the business had for several years continuously employed Moroccan nationals, who were legally resident in Belgium, held Belgian work permits, were covered by the Belgian social security scheme and were paid in Belgium. In 1989 the Vander Elst business carried out demolition work involving the recovery of materials on a building in France. The work took one month. In order to carry out the work, Mr Vander Elst put a team of eight persons on site, who were regular employees and of whom four were Belgian and four Moroccan. For the latter, he had previously obtained short-stay visas, valid for one month, from the French Consulate in Brussels.

When French employment inspectors made a check at the Reims site, they found that the Moroccan workers employed by Mr Vander Elst and working on the site did not have work permits issued by the French authorities as they were required under the French Labour Code for third country nationals. Furthermore, the French Office des Migrations Internationales (OMI), being exclusively responsible for the recruitment of foreign workers and bringing them into France, had not been involved. For having infringed the relevant provisions of the French Labour Code, Mr Vander Elst was charged with a "special contribution", as it had been the case similarly in the Rush Portuguesa case.

The ECJ, who had been asked for a preliminary ruling on this case, first stressed that in France the requirement that undertakings had to obtain work permits in order to employ nationals of non-member countries was coupled with the obligation to pay a fee which, like the heavy administrative fine imposed for non-compliance with that obligation, may entail a considerable financial burden for employers. Such provisions might have negative effects in particular on the freedom to provide services recognised by the ECT.
The Court repeated that according to his case law Article 59 ECT requires not only the elimination, against a person providing services who is established in another Member State, of all discrimination on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services. Furthermore, as one of the fundamental principles of the Treaty, freedom to provide services may be restricted only by rules which are justified by overriding reasons in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In any event, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment and thereby deprive of all practical effectiveness the provisions whose object is to guarantee the freedom to provide services.
Looking for overriding reasons in the general interest that may have justified the contested provisions of the French Labour Code the Court firstly noted that the Moroccan workers employed by Mr Vander Elst were lawfully resident in Belgium, the State in which their employer was established and where they had been issued with work permits. Furthermore, the short-stay visas held by the persons concerned, issued by the French Consulate at their request, constituted valid documents permitting them to remain in France for as long as was necessary to carry out the work. Consequently, the national legislation applicable in the host State concerning the immigration and residence of aliens had been complied with.

Secondly, the Court found that the requirement of work permits was not aimed to control the movements of nationals of non-member countries, but to regulate their access to the French labour market. Referring to its judgement in the case Rush Portuguesa, the Court reiterated that workers employed by an undertaking established in one Member State who were temporarily sent to another Member State to provide services did not in any way seek access to the labour market in that second State, if they returned to their country of origin or residence after completion of their work. Those conditions were fulfilled in that case. In those circumstances, the requirements at issue went beyond what may be laid down as a precondition for the provision of services. Accordingly, the Court held with respect to staff „lawfully and habitually" employed that those requirements were contrary to Articles 59 and 60 of the Treaty.

The Court has not yet decided whether the freedom to provide services precludes Member States also from requiring visas for posted workers from third countries. Arguably, his rather casual remarks in the judgement Vander Elst, that the workers in fact held valid short-stay visas permitting them to remain in France for as long as necessary to carry out the work, may not be interpreted as allowing Member States to apply their national legislation concerning the immigration and residence of aliens in its entirety. In principle, Community law should allow Member States to have an eye on the movement of nationals of non-member countries, possibly by requiring entry-visa. Member States must take into account, however, that third country nationals, falling within the scope of the Vander Elst decision and therefore participating in the freedom to provide services enjoyed by their employer, do have a right to enter other Member States in order to fulfil their labour contracts. In other words, Member States' possibilities to deny them the required papers are rather limited.

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...cut the bullshit please...

Thorsten von Thyssen
Member
Member # 4397
Posted December 04, 2003 04:02 PM
For really short visits (few weeks) you can use a standard business Schengen visa.

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...cut the bullshit please...

zimbo
Junior Member
Member # 7308
Posted December 04, 2003 04:15 PM
Hi Mr Thorsten,

I find your info very useful. And I have visited the german embassy website to confirm.

I have been trading through my limited company for 5yrs now. So I think there shouldnt be a problem regarding company proof.

The next step is to call the german embasy for further enquiries.

Thanks again,

Cheers

Zimbo

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We live in a shrinking world. Eventually Immigration becomes irrelevant issue.

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