Rules on the posting of workers to Germany

The subject of the posting of workers abroad consists of legal, fiscal
and administrative, which we have divided into the following areas:

Social security

• determine the legislation applicable to the posting of workers abroad, taking into account the provisions of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004.
  on the coordination of social security systems and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009. concerning the implementation of Regulation (EC) No 883/2004 on the coordination of social security systems,
• rules on record-keeping for the correct accounting of postings under art. 13 of Regulation No. 883/2004, guidelines for correct posting from Art. 12 of the European Parliament Regulation
  and Council Regulation (EC) No 883/2004 of 29 April 2004. on the coordination of social security systems,
• Representation of employers in checking and inspection proceedings conducted by Social Insurance Institution units.

Tax law

• utworzenie “zakładu podatkowego” w rozumieniu art. 3 ust. 1 lit. a) ustawy o podatku dochodowym od osób prawnych. 5 of the double taxation convention between the Republic of Poland and the Federal Republic of Germany for the avoidance of double taxation with respect to taxes on income and on capital of 14 May 2003,
• the creation of a ‘tax establishment’ within the meaning of section 12 of the German Tax Ordinance (Abgabenordnung of 16 March 1976. in its current version of 1 October 2002. as amended),
• obligations of the entrepreneur on German territory in connection with the establishment of a “lohnsteuerliche Betriebsstätte”, current practice of the German tax authorit
• the tax treatment of posted employees/contractors taking into account the double taxation convention between the Republic of Poland and the Federal Republic of Germany for the avoidance of double taxation with respect to taxes on income and on capital of 14 May 2003.

Employment law

Determining which provisions of German labour law apply to workers posted to Germany requires taking into account the legal acts in force at the European level, as well as the
in the national and German legal systems.

The most important pieces of legislation at European level are:

• Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996. concerning the posting of workers in the framework of the provision of services and
• as of 31 July 2020. Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018. amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services,
• Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008. on the law applicable to contractual obligations (Rome I).

When analysing European, national and German law, it should first be determined whether the activities of the employer in question are covered by a collective agreement in force
in Germany, and then determine the minimum wage rates applicable to the employer, working time, holidays, health and safety in Germany, working hours for posted workers.

When advising our clients, we pay attention to issues that are problematic, including the settlement of overtime in Polish and German law, or issues of the correctness of the way in which the documentation of posted employees is kept.

Other obligations of the foreign employer:

Notification obligation within Germany

In certain cases of posting, German law imposes an obligation on the foreign employer to notify the fact that the employees have been posted to Germany, which follows from § 18 of the German Act
on the posting of workers [Gesetz über zwingende Arbeitsbedingungen für grenzüberschreitend entsandte und für regelmäßig im Inland beschäftigte Arbeitnehmer und Arbeitnehmerinnen] and
§ Section 16 of the German Minimum Wage Act [Gesetz zur Regelung eines allgemeinen Mindestlohnes].

Obligation to keep records in Germany

German law imposes record-keeping obligations on foreign employers
related to the posting of workers to Germany, and specific rules in this regard have been
regulated in § 19 of the Posting of Workers Act [Gesetz über zwingende Arbeitsbedingungen für grenzüberschreitend entsandte und für regelmäßig im Inland beschäftigte Arbeitnehmer und Arbeitnehmerinnen] and § 17 of the Minimum Wage Act [Gesetz zur Regelung eines allgemeinen Mindestlohnes].