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Posting of third-country nationals: memo flags risk of EU infringement proceedings

Writer: Joost van Ladesteijn
Joost van Ladesteijn
2 days ago
2 min read

On 12 November 2026, Minister Vijlbrief of Social Affairs and Employment sent the Dutch House of Representatives the correct version of the decision memos accompanying his parliamentary letter on posting of workers of 6 November 2026. An incomplete version had been sent with that letter by mistake. With this follow-up, the internal memo on the draft decree amending the BagwEU (the decree implementing the Posting of Workers Directive) and the Decree implementing the Wav (BuWav) has also been made public. The draft decree is currently open for public consultation.

What is the draft decree about?

The draft decree concerns the cross-border posting of third-country nationals: workers from outside the EU who are deployed in the Netherlands by an employer from another Member State. To assess whether such a worker carries out his main activity in the sending Member State, the memo states that it will be relevant whether he worked there for at least three months immediately before the posting, and whether and to what extent he is still entitled to work and reside in that Member State after the work in the Netherlands has ended. The aim is for the amendments to enter into force on 1 July 2027.

Sailing close to the wind

The memo's risk assessment is striking. The three-month period was chosen because it matches the requirement in the revised EU social security coordination rules that a worker must have been subject to the sending Member State's system for three months before the posting. The period also remains well below the six months of prior employment that the Court of Justice of the EU previously regarded as a restriction on the freedom to provide services. Even so, the memo acknowledges that the ministry is ‘sailing close to the wind’. According to the memo, there is a risk that the European Commission will start infringement proceedings against the Netherlands if it does not consider the three-month period a justified and proportionate restriction on the freedom to provide services.

What does this mean?

For Dutch clients and hirers working with posted third-country nationals, now is the time to assess the impact. The proposed test may mean that certain posting arrangements no longer qualify as lawful posting. At the same time, the decree has not yet been adopted, and EU scrutiny may still affect the outcome.

Practical tips

  • Identify which service providers from other Member States deploy third-country nationals for you in the Netherlands, and how long those workers previously worked in the sending country.

  • Consider responding to the public consultation, which is open until 4 December 2026 inclusive.

  • Include provisions in contracts with foreign service providers on information about the residence and work status of posted workers in the sending country.

Read more on this topic in our knowledge base. Questions about your own situation? Contact us.

This blog provides general information and is not legal advice. For advice on a specific situation, please contact us.

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