Today, using the example of one of our law firm's clients - a Polish company involved in erecting photovoltaic surfaces. I will present to you 5 ways to relocate third-country workers to another EU countryin this case to Germany. Why have I decided to start this year with this topic?
The geopolitical situation and ever-increasing energy prices are forcing businesses to intensify their search for alternative energy sources. The revitalised demand in global markets for the construction of wind farms and photovoltaic plants also creates a need for workers to move quickly to the place of work - often in another country. As a consequence, many companies employing third-country nationals - as a result of market competition rules - win tenders in other countries for the construction of power generation facilities.
Unfortunately, the need for independence from Russian gas is not being followed by regulatory amendments. These, in turn, are necessary in order to quickly and seamlessly relocate staff to service sites. Therefore, how do we do it well, effectively and efficiently for our business?
I answer below!
A word of introduction...
Earlier, I mentioned that I am creating this entry on the basis of the existing facts. I will therefore summarise some important facts about our client's situation for a good start.
A photovoltaic company with Turkish capital (but headquartered in Poland) employs Turkish citizens - specialists in the erection of large photovoltaic surfaces. The company was contracted to carry out work in Germany using its own employees. Unfortunately, the deadline for the order was very short. Employees had to be relocated smoothly and quickly to carry it out. What opportunities could the company have used?
Read also: Doing business in Germany or in Poland - which to choose?
Posting of workers in the framework of temporary provision of services in the territory of another European Union country
It's the easiest way to relocate employees third-country nationals legally employed in Poland on the territory of another EU country. Unfortunately, it does not quite work if we are talking about the relocation of workers within Germany. Are you wondering why?
This is because Germany effectively defends access to its labour market. This is reflected in particular in the need to obtain for each of the relocated workers from third countries visas Vander Elst. It is a kind of document verifying the correctness of the posting process in Germany. The visa is issued by the German embassy in Warsaw. Unfortunately deadlines for issuing visas are very long and may only affect a small number of workers sent to work across the Oder.
However, our client had 40 employees to send at one time. This number therefore made it impossible to successfully apply for a Vander Elst visa for each of these employees within a very short period of time. As a result, we started looking for alternative methods to legally relocate the company's employees to carry out a very large order in Germany.
5 ways to relocate employees in a corporate group - the ICT (Intra-Corporate Transfer) card
ICT Charter is an authorisation allowing relocation of staff under transfers between related by capital or personality businesses, one of which is outside the European Union in the framework of the implementation of EP and Council Directive 2014/66/EU of 15 May 2014 on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer.
The application for an ICT card shall be made in the country where the worker will stay the longest for the purpose of work. This also applies if the third-country worker's first country of residence will be another EU country.
What should the employer of a Polish company do in our case? Mhe possibility of relocating workers from Poland to Germany should apply to the Polish Provincial Office for an ICT card for foreigners from Turkey if:
- the foreigner is to be seconded to Poland by his/her parent employer, established outside the territory of the Member States of the European Union, the European Economic Area or Switzerland in the framework of an intra-company transfer to a company in Poland (the company must have a capital or organisational relationship with the parent employer or belong to a group of companies), and
- the foreigner will perform work in Poland as an employee belonging to the managerial staff, a specialist or a trainee employee for a period exceeding 3 months (90 days).
Similar conditions for obtaining an ICT card apply in Germany. The ICT card is then applied for at the foreigners' office by the host company. This will therefore be the German branch of a foreign company located outside the European Union - in our case in Turkey.
Of course, before arriving in Germany, the employee should obtain from the competent embassy of the country of origin work visa. The ICT permit allows for the legalisation of a foreigner's residence and work in a single administrative procedure, therefore It is no longer necessary to apply for a separate work permit.
ICT authorisation shall be granted for the period of the planned transfer within the company, however not longer than:
- 3 years - for managers and specialists,
- 1 year - in the case of workers in training.
What makes it possible to obtain an ICT card in Poland?
Obtaining an ICT card facilitates the mobility of workers within European Union countries. Foreign workers with an ICT card in an EU country can go to work temporarily:
- to another European Union country,
- when certain conditions are met,
- intra-company or intra-group,
- without having to leave early for the country of origin.
This is what I write about below.
Short-term mobility
Third-country workers having polish ICT card can go to work on German territory for a period of up to 90 days. Of course, this takes place within the framework of an intra-company or intra-group transfer. For this short-term transfer, it is not required on German territory to apply for an additional residence title. It is sufficient that the Polish company (or branch) informs the German Office for Migration and Refugees (BAMF) of sending employees for temporary work to a company (or branch) located in Germany.
Notification may be made in by e-mail. The authority should give its consent within 20 days for the arrival of workers in Germany. This means that when wishing to send a non-EU employee to DE, this must be done min. 20 days before planned arrival foreigners to Germany. The consent of the German employment office is not required here.
5 ways to relocate employees in the capital group - mobile ICT card
Third-country workers having ICT card issued in another EU country may also stay in Germany for a period of more than 90 days. However, for this they need residence permit in Germany, the so-called mobile ICT card.
Applications for a mobile ICT card shall be lodged with the competent authority for the place of establishment of the branch or group undertaking Office for Foreigners.
A condition for the issuance of a mobile ICT card is that the employee:
- belonged to the so-called management or
- was a specialist in his field or a trainee.
Attention!
A mobile ICT card in Germany will only be issued if the period of stay in Germany does not exceed the period of stay in the country where the original ICT card was issued.
If the employee has come to Germany under the so-called 'Germanisation', he or she will not be able to work in Germany. short-term stay, by submitting a notification to the office for migration and refugees, application for a mobile ICT card due to an extension of his/her stay beyond 3 months should be submitted at least 20 days before the end of the short-term stay. In order to issue a mobile ICT card, the approval of the Employment Agency is necessary. However, this is obtained by the Migration Office in an internal procedure.
International staff exchanges/projects abroad
Another option for the relocation of workers within Germany is the international staff exchanges and overseas projects.
What is the procedure for internationally operating entrepreneurs and concerns in Germany?
Consent on international staff exchanges within the group or the company issues Office for Foreigners (without the involvement of the German Employment Agency). Condition consent is to employees in the framework of international exchanges were qualified employees. And in particular employees who have graduated from university and technical colleges. This fact must, of course, be demonstrated by appropriate documents.
Transfer in the performance of foreign projects refers to a situation in which activities in Germany in a group company outside the European Union to prepare for the implementation of the project outside Germany.
It should be borne in mind that - irrespective of the granting of permission for the exchange of personnel - visitors to Germany must be issued with a entry visa in the country of origin.
5 ways to relocate employees in a corporate group. Summary
Are you relocating your employees to other EU countries or planning to do so? If you need support in this area, we will be happy to talk to you and address your concerns. Call us: +48 606 608 089 or write to sekretariat@bktkancelaria.pl.
Read also: Training contracts and secondments - a way to circumvent the rules?
