Posting of Third Country Nationals to Malta: the Vander der Elst Application in Malta

As a matter of rule, individuals who are not citizens of an EU Member State (also known as Third Country Nationals-TCNs) must be in possession of an employment licence (also known as work permit), in order to both legally reside and work in Malta.

However, in terms of the Van der Elst ruling by the European Court of Justice (ECJ), TCNs who are employed by a company based in an EU country are allowed to provide services to a company based in another EU country for a limited period of time, without the need to possess a work permit. This ruling is in line with the principle of freedom to provide services in Europe and the principle of no-discrimination between European and non-European citizens.

The said ruling has been incorporated by several EU Member States, including Malta.

Eligibility criteria

The Van der Elst ruling applies to those TCNs who match the following eligibility criteria:

1. TCNs to be posted to Malta have to be already employed by a company which is established in an EU/EEA country, prior being posted; and,
2. The same TCNs must hold an employment license which they have been provided with in the country where that company is established.

In this respect, no specific TCN’s seniority with the posting company is required.

Therefore, should the employee be a TCN who is employed by an undertaking which is established in an EU/EEA country and in possession of an employment license in this country, the same TCN does not need to apply for an employment license in Malta.

On the other hand, should the TCN be posted to Malta by an undertaking which is established outside the European area, an employment license which is to be issued by the Employment and Training Corporation (ETC) is required.

Procedure

The posting undertaking has to notify the Director of Industrial and Employment Relations (DIER) in Malta of its intention to post the TCN.

In this respect, a ‘Notification of a Posted Worker to Malta’ application form must be duly completed and submitted to the DIER. This application form has to be accompanied with a copy of the posted TCN’s employment contract with the posting undertaking and with a copy of his/her existing employment license.

In this respect, it is important to keep in mind that the said notification must be submitted to the DIER prior to the commencement of the posting in Malta.

The posting undertaking has the duty to keep a copy of the said notification form at the place of work, for monitoring purposes by the Maltese Inspector of the DIER.

Timeframe. How long can the posting last?

In terms of the Van der Elst ruling, the temporary nature of an activity carried out by the posted TCN on the territory of a EU Member State, cannot be determined abstractly, but it has to be determined on a case by case basis depending on the duration, frequency or continuity of employment.

In view of this, the DIER makes a decision with respect to the maximum duration of the posting period on a case by case basis.

In the light of experience, the posting is authorized by the DIER up to a maximum of two years.

Family Members’ Position

Posted TCNs’ family members (spouse, minor child, dependent child over 18 years) must apply for a family permit in order to legally stay in Malta during the period of posting.

For further information about how GVZH Advocates can help you with your Employment Law and/or Industrial Relations requirements, kindly contact us here.