Let's start with the good news: If you have your company in an EU member state, you have unrestricted freedom to provide services. You may operate temporarily in Germany without a branch and may post employees to Germany.
Employees from countries outside the EU or the European Economic Area can be temporarily posted to Germany. To do so, they must be properly employed in their home country and there must be an agreement between Germany and their home country. A special visa called a Vander-Elst visa is usually required for entry and residence. This must be applied for at the German diplomatic mission abroad. A work permit can then be issued.
Foreign subcontractors from third countries
However, it is not possible to employ foreign subcontractors from third countries that do not have a contract for work and labour agreement with Germany. There are currently work contract agreements with Germany in the following countries: Bosnia and Herzegovina, Macedonia, Serbia, Turkey.
What you need to know is that there are continents on the use of labour contracts. These are fixed maximum numbers. And these are based on the requirements of the German labour market. It is important to note that the employment agency in Stuttgart is responsible for the implementation of all intergovernmental work contract agreements.
How can employees be deployed under a contract for work and labour?
If you use a subcontractor, you will need a Contract for work. This takes place in accordance with §§631 BGB ff. The subcontractor provides its service in the form of a trade and this trade is transferred to it for independent execution.
It is important here that the work contract is processed in a formally correct manner. Above all, bear in mind the entrepreneurial risk that a subcontractor bears, including the warranty and results-related remuneration. A notification must also be submitted to the local Chamber of Crafts. This must be done in advance and goes to Annex A of the Crafts Code is required. It is important for the temporary exercise of a skilled trade requiring a licence and also for a skilled trade not requiring a licence.
You must also observe the Posted Workers Act. This stipulates minimum working conditions for certain sectors for employees who are posted and who regularly employ workers in Germany. As an employer, you are obliged to keep time sheets and documents in German. This helps with the financial control of undeclared work.
Visa requirement
There is a visa requirement for all employees who are not German citizens. You can apply for a Schengen visa for all signatories to the Schengen Agreement. With this visa, an employee can stay in Germany for a maximum of three months every six months during the period of validity.
Furthermore, according to the judgement of the ECJ, there is also the Vander-Elst visa. You can also use this visa to employ staff from third countries, regardless of their nationality. All you need is a valid residence permit. Also remember to report to German customs, which is required for some activities. You do not need to worry about social security for a posting of up to 24 months. You will continue to be insured in the country of posting for this period.
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