The mobility of third-country national workers in the context of the provision of services within the European Union continues to be a complex legal field, marked by the coexistence of immigration obligations arising from European rules and national systems. In this context, the judgment of the Court of Justice of the European Union in case C–540/22 SN provides decisive clarification regarding the limits and scope of the freedom to provide services within the Schengen Area, with a specific focus on the labour mobility of third-country nationals.
The core of the Court’s analysis focuses on determining whether Articles 56 and 57 of the TFEU can generate a derived right of residence for third-country workers temporarily posted to another Member State. The Court’s conclusion is very clear: the freedom to provide services established in Article 56 TFEU does not, in itself, confer an autonomous right of residence on third-country workers.
According to the content of Article 56 TFEU, the freedom to provide services protects the economic activity of the undertaking providing the service, but does not automatically alter the individual legal status of the worker for immigration purposes. Consequently, the fact that a company operates lawfully in another Member State does not imply that its third-country workers are exempt from complying with the immigration requirements established by the national legislation of the host State.
Additionally, the Court addresses a key operational issue for companies’ strategic planning: the duration of the posting.
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In the case of short stays (less than 90 days within a 180-day period), the Schengen Borders Code allows for intra-European mobility without the need to obtain additional residence and work permits;
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Where the stay of third-country workers in the host Member State exceeds this period, Member States may require the obtainment of a residence permit.
The power of Member States to impose additional obligations or require residence and work permits is not absolute, but is subject to the principle of proportionality, which acts as a limit on Member States. Additional immigration procedures adopted by each Member State must not duplicate checks already carried out under other obligations arising from EU legislation on the provision of services, such as posting declarations under the EU Posted Workers Directive.
According to the CJEU, it is essential that Member States ensure that their internal systems are consistent with the logic of cross-border service provision. The procedures established by the competent authorities of the different EU countries must be:
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Efficient
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Predictable
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Adapted to the temporary nature of worker postings
The relevance of the CJEU judgment lies in the balance it establishes.
While it validates the possibility of imposing certain additional requirements, it warns that their application may result in concrete obstacles that, in practice, restrict the freedom to provide services for EU companies. In reality, administrative procedures across different Member States show significant dysfunctions: fragmented competences, lack of coordination between authorities, excessive processing times, and documentary requirements that fail to take into account the specific needs of companies.
From a business perspective, these limitations translate into concrete operational risks:
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Delays in project execution;
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Potential breaches of contractual obligations with clients;
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Difficulties in planning the international mobility of personnel
In this context, the judgment does not expand the residence rights of posted workers, but it does redefine the framework within which Member States may regulate them. For companies, this implies the need to adopt a more strategic approach, combining regulatory compliance with a critical analysis of national administrative practices.
Our support
At Feliu N&I, we understand the challenges companies face when reconciling their operational needs with the various immigration requirements established by Member States, especially in planning the posting of third-country national workers.
We are fully aware that the key to effective management lies in anticipating the requirements of the host country and properly integrating administrative timelines into project planning. In this regard, we continuously support companies in adopting a strategic approach, based on tailored audits that align their business needs with the applicable immigration requirements in each Member State.
Our multidisciplinary team, specialised in corporate immigration, visas and work permits, supports companies at every stage of the worker posting process: prior feasibility analysis, immigration planning, document preparation, application submission, and follow-up until resolution.
We continuously monitor legislative developments and regulatory changes impacting international mobility, both in Spain and across other EU countries. This approach enables us to provide up-to-date and structured advice, facilitating decision-making with full legal certainty.
For detailed information on immigration, labour and tax requirements for posting third-country workers for the provision of services within the European Union, please feel free to contact our teams for any assistance you may need.
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