Posting non-EU employees to work in Germany – what to keep in mind?

Article 56 of the Treaty on the Functioning of the European Union guarantees the freedom to provide services in both active (freedom to provide services) and passive (freedom to receive services) dimensions. This principle applies not only to EU citizens but also, inter alia, to posted third-country nationals (non-EU). It therefore also concerns situations in which a Polish company employing workers from Ukraine, Belarus or Russia uses them to carry out a foreign contract in a neighbouring western country. Although the procedure for such posting has, by virtue of European Court of Justice case law, been stripped of many restrictions, employers are still subject to certain obligations, the failure to fulfil which may result in negative consequences.

The key concept that an employer posting workers should become familiar with is the Vander Elst visa. It is issued to foreigners posted to Germany to perform services by a Polish company. It can be obtained at the German Embassy in Warsaw for €75. It should be noted that the visa can only be obtained by the employee in person. The appointment at the embassy must be booked using an online registration system. The visa issuance process is simplified and does not require special permits, but it must be accompanied by an employment contract, proof of registration in Poland, a work permit or other documents confirming residence and work authorisation in Poland, a contract between the employer and the service recipient in Germany, and an A1 certificate for the foreigner.

The most difficult step in the visa application process is arranging an appointment at the embassy. The waiting period can extend to as long as six months. A problem arises from the fact that Polish companies often post workers shortly after accepting a contract, which leads to situations where employers decide to post workers without a visa. It is important to remember that this carries serious consequences, including a fine of up to €500,000. Among Polish entrepreneurs, there is a false belief that this problem can be resolved by having a non-EU employee establish their own business activity. However, even self-employed individuals are obliged to obtain a Vander Elst visa.

There are several exceptions to the visa requirement under the law. The first relates to third-country nationals who are long-term EU residents.
A long-term EU resident granted such status in another EU country may work in Germany without a Vander Elst visa for 90 days within a 12-month period. The long-term resident permit is granted to foreigners who have been residing legally and continuously in Poland for at least 5 years immediately prior to submitting the application and who meet the following conditions:
• they have a stable and regular source of income sufficient to support themselves and their dependants;
• they have health insurance;
• they have a confirmed knowledge of the Polish language.

Another exception applies to business trips. In this case, the employee may carry out remunerated activities in Germany without a Vander Elst visa for 90 days within 180 days. This applies only to:
• sales department employees of a German company who perform their tasks abroad;
• an employee of a foreign company who conducts talks or negotiations, concludes contracts or supervises the execution of contracts in Germany;
• an employee of a foreign company who is responsible for establishing, supervising or managing a company branch or office in Germany.
A foreigner who is part of the managerial staff of a German company may also work in Germany for 90 days within 180 days.

Another exception to the visa requirement applies to the performance of certain services by an employee within 90 days in a 12-month period. The services specified in the legislation include:
• assembly, configuration, maintenance or repair of machinery, equipment (installations) and computer software used for economic purposes which were ordered from the employer, as well as implementation during the operation of such machines, equipment and electronic programs;
• acceptance or familiarisation with the operation of purchased machines, equipment or other items;
• disassembly of purchased used equipment for the purpose of reassembly in the employer’s home country;
• construction and dismantling of trade fair stands for their own or another foreign company;
• participation in training as part of export activities or licensing.

In order to benefit from the exception granted to foreigners, the Federal Employment Agency must be notified using a dedicated form. Polish companies should bear in mind that the Agency thoroughly examines each notification and the grounds for invoking an exception are interpreted narrowly. For example, the category concerning assembly and repair of machines and equipment applies only to the installation of units that form an independent, self-contained, ready-to-use technical system. Therefore, the installation of steel structures or building components forming part of a building will not be taken into account.

The final exception to the visa requirement applies to drivers engaged in international transport. It concerns the remunerated activity of a driver in Germany who is employed by a company based in another EU country. Such an employee is entitled to:
• pick-up or delivery of cross-border transport to or from Germany;
• cabotage: after the first partial or full unloading following international transport, up to three transport operations may be carried out. If the foreign company has neither a registered office nor a branch in Germany, the last unloading must take place within 7 days of the first partial or full unloading;
• passenger transport on behalf of an employer based outside Germany, using a vehicle registered in the employer’s country.

Fulfilling the above formalities does not exhaust all the requirements faced by Polish companies when posting third-country nationals to Germany. In addition to matters concerning the legalisation of work and residence, various formal requirements must also be met, such as registration with the tax office or customs notification.