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Legal basis: Delegating workers within the framework of service provision in the European Union is defined in the Directive 96/71 EC of the European Parliament and the Council of 16th December 1996 with the subsequent Directive 2014/67/EU of the European Parliament and the Council of 15th May 2014 on the enforcement of the Directive 96/71/EC and the Directive 2018/957 of 28th June 2018 amending the Directive 96/71 EC.

The directives above are directly linked to the freedom of services provisions within the framework of the European Union, which is considered one of the fundamental freedoms that create the basis for the single market. According to Article 56 of the Treaty on the Functioning of the European Union (Official Journal of the EU of 26th October 2012, C 326/49), the restrictions on the free service provisions within the Union are prohibited concerning the citizens of EU member states who have their company in a member state other than the country of the recipient. The freedom to provide services is of both active (freedom to provide services) and passive (freedom to use services) character.

Imposing any restrictions on the provision of service by member states on their territories within the principle of the freedom of provision of services by another member state would be breaking the fundamental legal act of the European Union, which is the Treaty on the Functioning of the European Union.

Delegating process

Delegating the citizens of third countries is carried out from the territory of a member state and by the economic entity registered on the territory of that country where they are employed legally. Thus, in this case, we are not talking about the provision of service by the employees’ countries of origin, as the company providing services is registered on the territory of the EU and is native to the member state. They, therefore, have the right to employ the citizens of third countries in their company through whom they can provide services on the territory of a different member state. Consequently, the restrictions in this Directive, Paragraph (20), do not apply.

Article 3 of the Directive states that the following working conditions in the country to which they will be delegated should be ensured for the trusted employee, as long as they are more favourable for them:

  • the maximum period of work and minimum time of rest;
  • the minimum scope of the annual paid leave;
  • the minimum rates of pay, including the hourly rate;
  • work safety and hygiene in the workplace;
  • equal treatment for men and women and other discrimination provisions.

Our company fully complies with the conditions defined in the EU Directives relating to employee delegation. Hence, our services are entirely legal and thus safe for our contractors and employees.

The ruling of the European Court of Justice on delegating the third-country nationals

The issue of delegating third-country nationals (outside the EU) by another member state was also the subject of disputes before the EU Court of Justice. The ruling of 9th August 1994 in the case C-43/93 Vander Elst.  The case of Raymond Vander Elst, a citizen of Belgium, was recognised who, within his business activity, sent employees from Morocco, employed legally in Belgium, to France to carry out demolition works. French authorities imposed a high fine on him. The Belgian national appealed to the French administrative court. The EU Court of Justice, answering a question from the French court for a preliminary ruling in the appeal proceedings, found that EU Member States may not introduce additional restrictions, such as the requirement for work permits, for employees who are third-country nationals employed legally in the European Union state, sent to another country of the European Union.

A notable example of Germany

The ruling of the EU Court of Justice was reflected in the legislation of member states, including Germany, which introduced a particular type of visa for such employees – the Vander Elst visa. Based on this visa, Polish businesses can delegate employees who are citizens of third countries to Germany to provide limited services in Germany. Vander Elst visa allows services provision in another EU country without having a work permit or other permits regarding legal aspects of employment. However, the employment agreement must link the employee to the Polish employer to issue it. It is also essential that such a contract cannot be concluded only to send an employee to Germany.

Delegating – legality of stay and legality of work

Foreigners employed in our company based on the above scheme can work legally based on delegation, provided the conditions specified in the law are met. The legality of employment, however, is entirely different from the legality of staying in another member state and requires an explanation. The staff employed in our company have type D working visas, temporary residence permits on the territory of the Republic of Poland, or long-term EU residence permits. This residence permit allows one to stay on the territory of a different member state for not longer than three months within six months. Hence, our service, even though it can be provided for unlimited time, has limited provision by individual people in our team.

The information above will allow you to work with our companies without worry. We encourage you to verify the above data in your country’s consulate in Poland. You can introduce them to the model of cooperation proposed by us. Thanks to this, you will receive a response confirming the services’ legal basis. We invite you to cooperate and benefit from our qualified personnel’s services.

Registration of foreigners in the country of secondment

If local regulations require the registration of a delegated employee at the local liaison institutions, our company performs such activities. All activities are done based on instructions given by the consulates of countries where the staff is posted, so we are confident our undertakings are correct.

We invite you to cooperate and benefit from our qualified personnel's services.

Deel allows you to provide localized benefits for employees in Poland within minutes. All in one manageable online dashboard.

  • Guaranteed Employee Benefits Fund
  • Social Security
  • Private Healthcare - Unisure (optional)
  • Private Health Insurance - LuxMed (optional)
  • Private Healthcare - Allianz (optional)

Government of Poland: Useful links

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