CJEU and the posting of Ukrainian citizens to the Netherlands

On 20 June 2024, the Court of Justice of the European Union (CJEU) ruled on a request for a preliminary ruling submitted by the District Court of The Hague (rechtbank Den Haag) in case C-540/22 concerning the compatibility of Dutch law provisions with the freedom to provide services within the EU. The case concerned the requirement for an additional residence permit for Ukrainian citizens posted from one EU country to another when their stay in the host country exceeds 90 days.

Exceeding 90 days for Ukrainian citizens

A Slovak employer posted Ukrainian workers to the Netherlands, where their stay exceeded 90 days within a 180-day period. Dutch law requires third-country nationals, including Ukrainians, to obtain a residence permit after this period. This permit defines the conditions, duration of stay, and costs of obtaining it. Consequently, the court in The Hague asked the CJEU whether such requirements comply with EU rules on the freedom to provide services.

Main disputed issues:

– Obligation to obtain a residence permit: The posting parties challenged the requirement to obtain an additional permit after exceeding 90 days’ stay in the Netherlands. – Validity period of the permit: Dutch permits were valid only for the duration of the Slovak permits, resulting in shorter validity than the posting period. – Application fees: The costs for obtaining permits were five times higher than for certificates of lawful residence for EU citizens, which was claimed to constitute an excessive burden.
The preliminary ruling sought to determine whether EU law, including Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU), precludes national provisions requiring third-country nationals posted for over 90 days within a 180-day period to hold individual residence permits, the validity of which depends on the permit in the sending country and may not exceed two years, and whose issuance involves fees.

Limitations on permit validity

Dutch law stipulates that the validity period of the residence permit for posted workers may not exceed the validity of their permits in their home country. The State Secretary, extending the duration of posted workers’ employment, issued residence permits matching the length of the Slovak permits. The claimants argued that such limitations are disproportionate regarding the freedom to provide services guaranteed by Article 56 TFEU. However, the CJEU held that such rules may be justified if aimed at preventing illegal stay and entry, as well as protecting public order. This means that workers posted for over 90 days cannot automatically benefit from the right to access the labour market in the host country.

Costs of obtaining permits

Regarding the amount of fees, the CJEU noted that these were comparable to the costs of obtaining a regular work permit for third-country nationals. The opposition pointed out, however, that the fees were five times higher than those charged to EU citizens, hindering the freedom to provide services. The Court observed that such fees may restrict freedom to provide services but EU law does not prohibit charging them as long as they are not disproportionate.

CJEU ruling

The Court ruled that Articles 56 and 57 TFEU do not preclude national provisions requiring posted workers exceeding 90 days to obtain residence permits, provided the conditions are not disproportionate. Permits may be limited to the validity of documents from the sending country and may require fees comparable to those for work permits for third-country nationals.

Practical conclusions:

The CJEU ruling indicates that Dutch regulations requiring Ukrainian citizens to obtain an additional residence permit comply with EU freedom to provide services. Nevertheless, each posting should be assessed individually, considering possible exceptions to this requirement. For assistance regarding the posting of Ukrainian citizens or workers from other countries, please refer to our law firm’s offer and contact us.