Infringement proceedings: EU believes Vander Elst case law is not sufficiently implemented in Germany

On January 30, 2026, the European Commission initiated infringement proceedings against the Federal Republic of Germany (INFR(2025)4025) . At the heart of this legal storm is the so-called " Van der Elst" rule . This construct, intended to safeguard the freedom of services, has often become a bureaucratic stumbling block for international projects in German administrative practice. The central question is whether national authorities are permitted to effectively circumvent European Union law through administrative hurdles.

Three decades of unresolved legal situation and the Van der Elst doctrine

To understand the current urgency of the issue, one must look back to 1994. In its landmark ruling (Case C-43/93) , the European Court of Justice (ECJ) established that companies based in the EU have the right to post their legally employed third-country nationals to other member states for temporary work assignments (the so-called “Vander Elst ruling”). The core of the doctrine states that no additional work permit may be required for these individuals, as this would disproportionately restrict the freedom to provide services under Article 56 TFEU. However, while the theory seemed clear, an administrative culture has taken hold in Germany that undermines the spirit of this ruling with a series of overly detailed regulations.

Administrative hurdles as a market barrier

In our daily consulting practice, we witness how the German implementation of these regulations becomes an obstacle course. Although the Van der Elst visa exists, the hurdles are often prohibitively high . Long waiting times at German embassies and consulates, a lack of available appointments, and extensive documentation requirements cause time-critical projects to fail. When a French company wants to send an engineer from India to Hamburg for a three-week project, the process becomes an incalculable risk. Germany often requires visas for which EU law actually provides no basis . Instead of modernizing access for specialists, we repeatedly observe a retreat to national control mechanisms that prioritize high thresholds. While the hurdles for the Van der Elst visa are significantly lower than for other visa types, even these lower hurdles still amount to a considerable restriction of the freedom to provide services.

EU exerts pressure on Germany

The Commission's current approach is not an isolated incident, but is supported by national case law. The Higher Administrative Court of Hesse recently emphasized (decision of March 26, 2025 – 3 B 1615/23) that the compliance of the procedure with EU law is questionable (see paragraph 53 of the judgment). If appointments at foreign missions are practically unavailable , this constitutes a disproportionate restriction. The CJEU has previously clarified that even short waiting times can be an unlawful impediment to the freedom to provide services.

Germany now has two months to submit its statement in the European Union's proceedings. If no adjustments are made, the Commission can refer the matter to the European Court of Justice (ECJ) under Article 258 TFEU. Should Germany ignore a subsequent ruling against it, it faces substantial financial penalties under Article 260 TFEU.

Conclusion: A necessary wake-up call for Germany as a business location

In summary, the intervention of the EU Commission represents a necessary corrective. The discrepancy between the proclaimed commitment to attracting skilled workers and the actual bureaucratic practices is glaring. We welcome this development, as it has the potential to break down the rigid structures of visa law and pave the way for a truly integrated European labor market . Germany now faces the challenge of making its processes not only more digital, but above all, more European-friendly. Only if mobility within the EU is seen as an opportunity will Germany remain a competitive business location. Until a final resolution is reached, however, we strongly advise companies to continue planning employee secondments well in advance.