In early 2026, the European Commission launched infringement proceedings against Germany over its visa requirements for third-country nationals providing cross-border services. A formal notice was sent on 30 January 2026, giving Germany two months to respond before the Commission may proceed to the next stage of enforcement.
At the center of the dispute is Germany’s application of the Vander Elst principle, a doctrine established by the European Court of Justice in 1994. The ruling confirmed that companies established in one EU Member State must be allowed to temporarily post their legally employed third-country national staff to another Member State without facing unjustified barriers. The Commission now questions whether Germany’s current procedures are compatible with that obligation.
The Vander Elst judgment established that Member States must not impose unnecessary administrative obstacles on companies providing cross-border services within the EU. In practice, this means that a company legally operating in one Member State should be able to send its non-EU employees to another Member State on a temporary basis without excessive delays or additional work authorization requirements.
Germany incorporated this case law into national regulations. Under Section 21 of the Employment Regulation, a residence title issued for cross-border service provision does not require approval from the Federal Employment Agency if the employee is lawfully employed by a company established in another EU Member State and is temporarily assigned to Germany.
However, the waiver of a residence title only applies in limited circumstances. Under Section 30 No. 3 of the Employment Regulation, a residence title is waived for service provision of up to 90 days within 180 days only if the individual holds EU long-term resident status in another Member State. This significantly narrows the exemption.
As a result, most third-country nationals posted to Germany must apply in advance for what is commonly referred to as a Vander Elst visa.
In March 2025, the Higher Administrative Court of Hesse confirmed that third-country nationals are generally required to obtain a visa to provide services in Germany. The court stated that German authorities may verify whether the requirements for a Vander Elst visa are met in order to prevent abuse.
At the same time, the court acknowledged that EU law compatibility may be questioned if procedural requirements or delays make the exercise of the freedom to provide services unattractive. One example involved reported difficulties securing timely visa appointments at a German embassy, raising concerns about whether administrative practices create disproportionate barriers.
The court did not invalidate the underlying regulation itself. Rather, it focused on how the visa procedure was handled in a specific case.
The European Commission has taken a broader view. It argues that requiring companies from other Member States to obtain Vander Elst visas for short-term cross-border services restricts the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union. It also refers to Article 21 of the Schengen Convention, which allows visa-free stays of up to 90 days within a 180-day period.
According to the Commission, Germany’s current system creates obstacles that conflict with EU rules designed to ensure the smooth operation of cross-border services throughout the Union.
If Germany’s response to the formal notice is not considered satisfactory, the Commission may issue a reasoned opinion. Ultimately, the case could be referred to the European Court of Justice. If the Court finds a violation, Germany may be required to amend its laws or administrative practices and could face financial penalties.
For now, the legal framework in Germany remains unchanged. Companies posting third-country national employees to Germany for short-term assignments must continue applying for Vander Elst visas unless the employee holds EU long-term residence status in another Member State.
The infringement proceedings could eventually lead to changes in administrative practice or even legislative reform. However, such proceedings often take considerable time. Until a final decision is reached or Germany adjusts its regulations, businesses must continue to comply with the existing requirements.
The outcome of the infringement proceedings may shape how cross-border service provision involving third-country nationals is handled in Germany. A ruling against Germany could lead to simplified procedures or expanded exemptions. On the other hand, if the current system is upheld, visa requirements are likely to remain in place.
In the meantime, companies operating across EU borders should closely monitor developments and ensure that assignments involving non-EU staff are planned well in advance to avoid compliance risks and delays.
Pros
Cons
At the center of the dispute is Germany’s application of the Vander Elst principle, a doctrine established by the European Court of Justice in 1994. The ruling confirmed that companies established in one EU Member State must be allowed to temporarily post their legally employed third-country national staff to another Member State without facing unjustified barriers. The Commission now questions whether Germany’s current procedures are compatible with that obligation.
The Legal Background
The Vander Elst judgment established that Member States must not impose unnecessary administrative obstacles on companies providing cross-border services within the EU. In practice, this means that a company legally operating in one Member State should be able to send its non-EU employees to another Member State on a temporary basis without excessive delays or additional work authorization requirements.
Germany incorporated this case law into national regulations. Under Section 21 of the Employment Regulation, a residence title issued for cross-border service provision does not require approval from the Federal Employment Agency if the employee is lawfully employed by a company established in another EU Member State and is temporarily assigned to Germany.
However, the waiver of a residence title only applies in limited circumstances. Under Section 30 No. 3 of the Employment Regulation, a residence title is waived for service provision of up to 90 days within 180 days only if the individual holds EU long-term resident status in another Member State. This significantly narrows the exemption.
As a result, most third-country nationals posted to Germany must apply in advance for what is commonly referred to as a Vander Elst visa.
Court Developments and Practical Concerns
In March 2025, the Higher Administrative Court of Hesse confirmed that third-country nationals are generally required to obtain a visa to provide services in Germany. The court stated that German authorities may verify whether the requirements for a Vander Elst visa are met in order to prevent abuse.
At the same time, the court acknowledged that EU law compatibility may be questioned if procedural requirements or delays make the exercise of the freedom to provide services unattractive. One example involved reported difficulties securing timely visa appointments at a German embassy, raising concerns about whether administrative practices create disproportionate barriers.
The court did not invalidate the underlying regulation itself. Rather, it focused on how the visa procedure was handled in a specific case.
The Commission’s Position
The European Commission has taken a broader view. It argues that requiring companies from other Member States to obtain Vander Elst visas for short-term cross-border services restricts the freedom to provide services under Article 56 of the Treaty on the Functioning of the European Union. It also refers to Article 21 of the Schengen Convention, which allows visa-free stays of up to 90 days within a 180-day period.
According to the Commission, Germany’s current system creates obstacles that conflict with EU rules designed to ensure the smooth operation of cross-border services throughout the Union.
If Germany’s response to the formal notice is not considered satisfactory, the Commission may issue a reasoned opinion. Ultimately, the case could be referred to the European Court of Justice. If the Court finds a violation, Germany may be required to amend its laws or administrative practices and could face financial penalties.
What This Means for Companies
For now, the legal framework in Germany remains unchanged. Companies posting third-country national employees to Germany for short-term assignments must continue applying for Vander Elst visas unless the employee holds EU long-term residence status in another Member State.
The infringement proceedings could eventually lead to changes in administrative practice or even legislative reform. However, such proceedings often take considerable time. Until a final decision is reached or Germany adjusts its regulations, businesses must continue to comply with the existing requirements.
Outlook
The outcome of the infringement proceedings may shape how cross-border service provision involving third-country nationals is handled in Germany. A ruling against Germany could lead to simplified procedures or expanded exemptions. On the other hand, if the current system is upheld, visa requirements are likely to remain in place.
In the meantime, companies operating across EU borders should closely monitor developments and ensure that assignments involving non-EU staff are planned well in advance to avoid compliance risks and delays.
Pros and Cons Summary
Pros
- Potential for clearer EU-wide alignment on cross-border service rules
- Possible simplification of administrative procedures in the future
- Increased legal scrutiny may strengthen consistency with EU freedoms
Cons
- Ongoing uncertainty for businesses during the proceedings
- Continued administrative burden and visa requirements in the short term
- Risk of project delays due to appointment shortages or processing times