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.
In Italy, the Van Der Elst principle was incorporated into national law with Law 46/2007, according to Article 27, paragraph 1-bis (legislative decree 286/1998 and its subsequent amendments), for the provision of services based on a pre-existing service agreement. Pursuant to this article, the Italian host company must file an online notice of transfer under its legal representative’s name, submitting the following documents to the authorities:
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).
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 issued by another EU State can be temporarily transferred to a company of the same group in Italy without applying for a visa or work authorization for short stays (up to 90 days in 180 days). The main requirement is submitting a declaration of presence to the local police within the first 8 days of arrival in Italy.
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 Initiation Delays: Work can only begin after an appointment at the Immigration office and in-country registration for the residence permit application, reducing the procedure’s effectiveness.
Residence Permit Complications: The absence of a work authorization and visa may complicate the residence permit application process, with Immigration Police potentially refusing to issue a residence permit due to the lack of a ‘necessary’ work authorization and visa.
Directive Compliance: Obligations under Decree n. 136/2016 (EU Posted Workers Directive) apply to Service Agreement assignments, adding complexity to the process.
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.
This article was written by Daniele Redi
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