Notification intra-EU service provision with third-country nationals via postedworkers.nl
The new WagwEU notification obligation via postedworkers.nl clearly generates questions/uncertainty. That is to be expected, but there is one recurring question from our clients: must intra-EU service provision with the involvement of third-country nationals (also referred to as Vander Elst and/or Essent cases after the rulings of the Court of Justice of the European Union of the same names), still be notified to the UWV as was required before 1 March 2020?
The answer to this is in the negative; these notifications will also be done via postedworkers.nl from 1 March 2020 and will therefore be completely withdrawn from the Foreigners Employment Act; see also the website of the UWV under the heading ‘Grensoverschrijdende dienstverlening’ (only available in Ducth) and postedworkers.nl under FAQ. But this is the rocket science of immigration law, which you do not simply do; after all, the underlying regulations and case law are extremely complex. So do not get tunnel vision from the WagwEU notification, losing sight of the much greater danger of illegal employment. And do not let government agencies mislead you with advice to apply for a work permit or a combined permit for residence and work. After all, that is their standard answer and in most cases wrong. Consult a specialist for this.
There is a fine moratorium until 1 September 2020 (enforcement, but no fine), but this does not apply to these situations: notifications of third-country nationals in the context of intra-EU service provision should have been reported via postedworkers.nl from 1 March 2020 on pain of a fine. How this relates to the announcement on the postworkers.nl website (under FAQ) that ‘the notification obligation only applies to activities that start on or after 1 March 2020’ is still unclear.
We refer you to the underlying regulations:
Terms of Employment Posted Workers in the European Union Act (WagwEU)
Employment Conditions for Posted Workers in the European Union (BagwEU)
Ruling on Employment Conditions for Posted Workers in the European Union (RagwEU)
Policy Rule on the Imposition of Fines in relation to the WagwEU 2020