At Schlun & Elseven Rechtsanwälte, our immigration lawyers advise multinational companies, in-house counsel, and Global Mobility teams on the Vander Elst visa Germany requires for third-country national employees posted here to provide temporary, cross-border services. If your organization employs third-country nationals through an EU entity and needs to deploy them to Germany for client work, project delivery, or internal assignments, this visa is very likely the compliance requirement standing between your posting plan and a resourcing gap.
The requirement itself is well-established. Its administration, however, is currently under formal challenge. A March 2025 German court ruling found one embassy’s visa process incompatible with EU law, and the European Commission opened infringement proceedings against Germany in January 2026 challenging the underlying rule. Teams planning postings now need to factor in real compliance risk and unpredictable lead times, not just a standard visa checklist. We help clients do exactly that.
Schlun & Elseven Rechtsanwälte handles Vander Elst applications, and wider business immigration matters, alongside the EU Blue Card, ICT Card, and other cross-border mobility routes, from offices in Cologne, Düsseldorf, and Aachen. As a digital-first firm advising international clients, we provide English-language support throughout, giving Global Mobility teams a single point of contact for the full range of postings into Germany.
When the Vander Elst Exemption Applies
The exemption is relevant where an employee:
- is a third-country national,
- is lawfully employed by a company established in an EU member state, with no minimum length of prior employment required, and
- is being posted to Germany to provide a temporary, cross-border service, while remaining employed by the EU-based company throughout the assignment.
Under Section 21 of the Beschäftigungsverordnung (Employment Regulation), this arrangement can proceed without approval from the Bundesagentur für Arbeit (Federal Employment Agency). Section 30, No. 3 of the same regulation narrows the exemption considerably: a visa is waived entirely only where the posting does not exceed 90 days within any 180-day period and the employee already holds an EU long-term residence permit. Outside that narrow exception, a Vander Elst visa is required regardless of how short the assignment is, a point that catches out many companies planning what they assume is a routine, brief business trip.
Where the assignment does not fit this framework, for example an intra-corporate transfer of at least six months’ standing rather than a client-facing service assignment, the ICT Card under Section 19 AufenthG (Aufenthaltsgesetz, the German Residence Act) may be the more appropriate route. Our lawyers routinely assess borderline cases where the exemption appears to apply but does not, since getting this classification wrong at the outset creates avoidable delay and exposure later.
How We Handle Your Application
We manage the process at the German mission abroad in the country where the employee is employed, filing before the posting begins and confirming in advance that each of the following is properly documented:
- the employee’s valid work permit in the EU member state of employment,
- the genuinely temporary and service-based nature of the posting to Germany, and
- where relevant, the 90-day, 180-day threshold and the employee’s EU long-term residence status.
Employing a third-country national in Germany without the correct authorization can carry significant legal exposure, including regulatory penalties and, in some cases, criminal liability under German law. We review each posting against the current legal position before it proceeds, so that risk is identified and managed before an employee travels rather than after a problem arises.
Current Legal Developments Affecting Vander Elst Postings
Two recent developments affect how Global Mobility teams should plan Vander Elst postings into Germany, and Schlun & Elseven Rechtsanwälte tracks both closely on behalf of clients with ongoing mobility programs.
Hessen Higher Administrative Court, 26 March 2025 (Case 3 B 1615/23). The Third Senate of the Hessischer Verwaltungsgerichtshof (Higher Administrative Court of Hesse) confirmed that Germany may, in principle, require a simplified notification procedure for posted third-country nationals, and that such workers do not automatically acquire a residence right purely because their employer is exercising the freedom to provide services. This mirrors a position the European Court of Justice had already confirmed in Case C-540/22. The court found, however, that the actual handling of Vander Elst applications at the German Embassy in Vilnius, Lithuania, was likely incompatible with EU law. Its own attempt to book an appointment through the embassy’s website over a two-week period returned no availability, which it measured against the standard set by the ECJ in Santos Palhota (Case C-515/08), where a five-day mandatory delay was already found unlawful. The ruling addressed one embassy’s practice, on a preliminary assessment, rather than the underlying rule. It suggests that unreasonable appointment delays may be a legal vulnerability worth raising where a posting is obstructed by embassy processing times, though this was an interim finding rather than a settled legal position.
European Commission infringement proceedings, 30 January 2026. The Commission has gone further, opening formal infringement proceedings against Germany (reference INFR(2025)4025) through a letter of formal notice under Article 258 TFEU (Treaty on the Functioning of the European Union). Unlike the Hessen ruling, the Commission challenges the Vander Elst visa requirement itself, arguing it restricts the freedom to provide cross-border services under Article 56 TFEU, together with Article 21 of the Schengen Convention. Germany has two months to respond. A reasoned opinion or referral to the European Court of Justice could follow, potentially forcing changes to German practice and financial penalties for continued non-compliance.
Two Different Challenges to the Vander Elst Visa Regime
| Hessen Higher Administrative Court (March 2025) | European Commission Infringement Proceedings (January 2026) | |
|---|---|---|
| What is being challenged | The handling and timing of applications at one German mission (Vilnius, Lithuania), in an interim ruling based on a summary examination of the facts | The Vander Elst visa requirement itself, as applied nationwide |
| Legal basis | Article 56 TFEU, measured against the ECJ’s Santos Palhota delay standard | Article 56 TFEU together with Article 21 of the Schengen Convention |
| Nature of the finding | Confirmed Germany may require a simplified notification procedure in principle, but found this embassy’s delays likely unlawful on a preliminary assessment, not a final ruling on the merits | Letter of formal notice sent; Germany has two months to respond before a reasoned opinion or ECJ referral |
| Practical effect today | Persuasive, non-binding precedent for challenging slow processing at a specific mission | No immediate change; the underlying rule stays in force pending the outcome |
What This Means for Your Posting Plans Today, and What to Do Next
The legal requirement is unchanged. Companies must continue applying for Vander Elst visas under the current rules for any posting that does not meet the 90-day, EU long-term resident exemption. What has changed is the risk profile around timing and consistency. If your company has postings planned or in progress, we can review them against the current legal position and help build appropriate contingency into your timelines before you proceed.
Recommended actions for Global Mobility and legal teams:
- Audit postings against the Vander Elst framework before assuming it applies
- Build in longer lead times for slower-processing missions
- Document the employment relationship, purpose, and duration for every posting
- Record delays beyond a reasonable timeframe. The Hessen ruling and Santos Palhota precedent both indicate that excessive delays may be open to legal challenge, though this has not been settled by a final court decision
- Monitor the Commission’s infringement proceedings for changes to German practice
Our lawyers can carry out this audit on your behalf, flagging postings at risk under the current rules and advising on the correct route for each case.
The Vander Elst Visa Compared to Other Residence Titles
The range of German residence permits, shaped further by EU law, can be difficult to navigate. Two permits are commonly confused with the Vander Elst visa: the ICT Card (Intra-Corporate Transfer Card) and the German Border Crossing Certificate.
ICT Card
The ICT Card under Section 19 AufenthG enables companies to temporarily transfer trainees, specialists, or executives who normally work in a branch outside the EU to a branch in Germany, provided the employee has already worked for the company for at least six months. An ICT Card is valid for up to three years, a materially different route from the short-term, service-based nature of a Vander Elst posting.
Border Crossing Certificate
The Border Crossing Certificate permits third-country nationals holding permanent residence in a country neighboring Germany to work or study in Germany, and applies to a different category of cross-border worker entirely from a Vander Elst posting.
Legal Background: The Vander Elst Exemption
The exemption takes its name from a 1994 ruling of the European Court of Justice in Vander Elst v Office des Migrations Internationales (Case C-43/93), which held that a member state cannot require a separate national work permit for third-country national employees already lawfully employed and posted by a company established in another EU member state. The court found this to be a restriction on the freedom to provide services under what is now Article 56 TFEU. There is no dedicated “Vander Elst visa” set out in German immigration statute. The term instead refers to the residence title required under this framework, based on this line of ECJ case law rather than a standalone legal provision. The underlying case discussed above (Hessen Higher Administrative Court, Case 3 B 1615/23) concerned a posted agency worker rather than an employee sent directly by their own employer, the more typical Vander Elst scenario, though the court’s underlying reasoning on delay and administrative practice applies across both.
Advising on Cross-Border Workforce Mobility
Vander Elst postings are one part of a wider compliance picture for companies moving talent into Germany. Schlun & Elseven Rechtsanwälte advises international companies across the full range of Global Mobility Germany matters, from short-term service postings and intra-corporate transfers to EU Blue Card applications and long-term residence planning, so that workforce mobility strategy and immigration compliance are handled together rather than as separate, disconnected processes. Where a posting plan involves multiple employees, multiple entry routes, or ongoing assignments across several EU member states, our lawyers can review the full program alongside the current legal developments outlined above, and help build a compliant, well-documented approach before postings begin.
An Overview: Frequently Asked Questions about the Vander Elst Visa
Not always. Employees who already hold an EU long-term residence permit are exempt for postings of up to 90 days within any 180-day period. Outside that exception, a Vander Elst visa is generally required regardless of how short the assignment is. Whether a specific posting qualifies for the exemption depends on the employee’s status and the nature of the assignment, and this is worth confirming before travel is booked.
There is no fixed statutory processing time, and current appointment availability varies by German mission abroad. This has become a live legal issue: a March 2025 ruling found delays at one embassy likely incompatible with EU law. Companies should build contingency into posting timelines rather than assume a standard turnaround.
The Vander Elst visa applies to short-term, service-based postings where the employee remains employed by the sending company. The ICT Card, under Section 19 AufenthG, applies to longer intra-corporate transfers of at least six months’ standing and is valid for up to three years. Choosing the wrong route can create avoidable delay, so this is worth confirming case by case.
No. The Commission’s letter of formal notice, sent 30 January 2026, opens a process that could take considerable time to resolve and does not suspend the current requirement. Companies must continue applying for Vander Elst visas under the existing rules until German law or practice actually changes.
Employing a third-country national in Germany without the correct authorization can carry significant legal exposure, including regulatory penalties and, in some cases, criminal liability under German law. This applies to the employer as well as the individual, which is why it is worth reviewing eligibility before an assignment begins rather than after.
Possibly, depending on the circumstances. A 2025 German court ruling found that unreasonable appointment delays at one embassy were likely incompatible with EU law, drawing on earlier ECJ case law setting limits on acceptable delay. This was an interim finding on specific facts, not a general rule, so whether it applies to a particular case needs individual assessment.
Practice Group: German Business Immigration Law
Practice Group:
German Business Immigration Law
