What is the cross border services provision?

Employers established in an EU country can temporarily post non-EU workers (so-called third-country nationals) to the Netherlands without requiring a work permit (permission from the UWV). This is called cross-border service provision. It is an offshoot of the freedom of services enshrined in the EU treaty. The idea behind this is that people and thus also companies within the EU should be allowed to provide services to individuals and companies in one of the other EU member states without restrictions.

Consider a company elsewhere in the EU that sends its third-country national employees (e.g., Indians or Ukrainians) to your company in the Netherlands to install a machine or perform maintenance on a previously delivered installation. Under certain circumstances, it is also allowed for the employer established elsewhere in the EU to make their third-country nationals available as a service to work for your company (employee secondment). Although the latter is allowed, one must be cautious as the Dutch Labor Inspectorate has often been critical of this in the past.

Conditions for cross-border services provision

To employ third-country nationals based on cross border services provision, the following conditions must be met:

  • The employer/service provider is established outside the Netherlands but in an EU country and is not a mailbox company.
  • The employee has a residence permit in the country of establishment to be allowed to work there.
  • The employee must perform similar work in the EU country of residence.
  • The employer must actually carry out substantial activities as referred to in Article 6, third paragraph, part a, of the Posted Workers Act in the European Union.
  • The work must be notified to the Ministry of Social Affairs and Employment at least two days before commencement.
  • The secondment must not last longer than 24 months.

Note that the posted employee must enjoy the most favorable collective labor agreement (CAO) conditions. If these are more favorable in the Netherlands, the employee must benefit from this even if they are still employed by the employer established outside the Netherlands.

If the above conditions are met and the employee will be employed here for more than three months, the employee can be issued a residence permit for cross border services provision, which can be applied for at the IND.

Why cross border services provision?

Recently, the labor market has been experiencing increasing staff shortages. For highly qualified and highly paid personnel, there are already arrangements such as the knowledge migrants scheme and the EU Blue Card, which make it relatively easy to attract personnel from abroad. For middle and lower-level personnel, one often relies on the GVVA (combined permit for residence and work), which proves to be an often impossible task mainly due to the labor market test (priority offering) and recruitment efforts. Personnel seconded to the Netherlands based on cross-border service provision is exempt from this strict and time-consuming test.

Employment through cross border services provision can also be realized in the short term. Already two days after registering the secondment with the Labor Inspectorate (postedworkers.nl), the person can start working.

However, note that a secondment based on cross border services provision may last a maximum of 24 months and is therefore temporary.

What can Arslan|Lit Advocaten do?

To begin with, our firm can advise your company in the preliminary phase to ensure all conditions are met. Our firm can also take care of timely notifications to the Labor Inspectorate for the arrival of workers. Our work is not only about relieving concerns but primarily about preventing your company from facing costly administrative fines. Since the Labor Inspectorate assumes chain liability, failing to properly second employees within the framework of cross-border service provision can also result in fines for you.

Furthermore, we can advise you on all employment law matters that may be involved.

If you have any questions about cross border services, please do not hesitate to contact our office. You can reach us by phone at 020 223 2466 or by email at info@arslanlitadvocaten.nl. We are happy to assist you! You can also contact us via our social media channels found at the bottom of this page.