Fundamental freedom or fundamental uncertainty? Comparing restrictions for the posting of third-country nationals to Germany and the Netherlands

The posting of Third-Country nationals (TCNs) is an increasing trend in the EU. When TCNs are posted, this means that non-EU nationals are temporarily employed in another Member State in the context of cross-border services provided by their employer. TCN posting is a product of the case law of the Court of Justice of the European Union (CJEU). In Vander Elst (C-43/93) and subsequent decisions, the CJEU held that receiving Member States cannot require posted TCNs to have work permits or impose other ‘prior authorizations’, as these amount to unjustified restrictions of the free movement of services. In practice, however, Member States such as Germany and the Netherlands, have continued to impose visa or residence permit requirements for them. While posting might offer opportunities in terms of employment and higher wages, posted TCNs are also particularly vulnerable to exploitative practices. This paper adds to understanding the situation of posted TCNs indirectly, by analyzing i) how Member State authorities implement CJEU jurisprudence on the posting of TCNs, and ii) how corporate litigants and national courts mobilize (or fail to mobilize) against restrictive Member State practices. We theorize two mechanisms that produce “disconnects” between EU law and practice regarding the situation of posted TCNs. The first relates to implementation disconnects: national administrations continue to require visas or residence permits for posted TCNs, despite questionable compatibility with EU law. Member State authorities reinterpret and justify these persisting visa requirements in light of evolving CJEU jurisprudence. After the CJEU’s SN judgment (C-540/22), the Dutch residence permit required to extend the posting of TCNs beyond 90 days has partly been re-legitimized as a measure to enhance the legal certainty of workers. Germany’s administrative practice continues to require a “Vander Elst visa” even before TCNs can be posted to Germany. While being justified as a means to verify the applicability of EU law, in practice, this procedure may delay or deter postings altogether, with considerable effects for TCN workers as well. The second mechanism concerns litigation disconnects: enforcement of EU law in this area depends on corporate litigants and the willingness of national courts to refer cases to the CJEU. Posted TCNs themselves face structural, legal, and practical barriers to mobilizing their rights, while posting companies have incentives to choose non-compliance or exit strategies over litigation. In the Netherlands, the SN case reached the CJEU due to the initiative of activist Euro-lawyers, whereas in Germany, despite more restrictive practices, litigation has remained rare and has not resulted in any referral to the CJEU, reflecting weak legal opportunity structures and limited judicial receptiveness. Empirically, the paper combines document analysis and semi-structured interviews with public authorities and corporate actors in Germany and the Netherlands, who are among the main receiving countries of posted TCNs. By analyzing how Member State administrative practice and corporate legal (non-)mobilization sustain gaps between EU law and practice, the paper contributes to broader debates about the limits of “integration through law” and the conditions under which CJEU jurisprudence remains disconnected from implementation in practice.