Recently, the number one topic with which entrepreneurs in the photovoltaic industry have been approaching our law firm is the issue of entering the German market with their services. This applies both to companies providing services to individual customers by installing panels on their roofs and to entrepreneurs building photovoltaic farms. The German market is becoming more and more attractive for Polish entrepreneurs, mainly due to government subsidies. If you are active in this sector and want to reach a new audience and increase your business profits, please read this article.
Form of business in the photovoltaic sector
A Polish entrepreneur wishing to enter the German market for photovoltaic services, after carrying out a market survey from a business perspective, should first take care of the legal form in which he will conduct his business directed at the German market. The answer to this question is crucial - both from the point of view of acquiring potential customers and the rights and obligations that the entrepreneur will have to fulfil, which are determined by the form in which the company is run.
A Polish entrepreneur may firstly decide to provide services in the form of photovoltaic panel installation as a Polish company that only performs its services in Germany, while still remaining a Polish entity, e.g. in the form of a limited liability company. A Polish entrepreneur in the photovoltaic sector may also decide to set up a German limited liability company (Gesellschaft mit beschränkter Haftung, abbreviated as GmbH) - this entails a number of legal, but also factual advantages - GmbHs are very trusted on the German market and are synonymous with high quality services. Another option is to establish a branch of a Polish company in Germany, the so-called Betriebsstätte. In principle, there is nothing to prevent entrepreneurs installing photovoltaic panels on a smaller scale from providing their services in the form of a German sole proprietorship, the so-called Gewerbe. It is worth noting that this form also does not exclude the possibility of hiring employees, who will be necessary for the entrepreneur to carry out the photovoltaic panel installation work.
The above examples are only an outline of the forms in which photovoltaic business can be conducted in Germany. It should be borne in mind that before deciding on the type of company, it is best to contact a lawyer specialising in legal services for entrepreneurs wishing to introduce their product or service on the German market, who will advise us on how to do so and create a solution tailored to our needs.
It is worth noting that if a Polish entrepreneur decides to operate in its current legal form, as a Polish company, there will be challenges related to the delegation of employees who will perform work related to the installation of photovoltaic panels. Issues related to taxation or fulfilment of obligations imposed on entities operating in Germany, despite being foreign companies from the European Union, will also be important.
The issue of posting workers to install photovoltaic panels
A further issue for entrepreneurs in the photovoltaic sector, who decide to stay with the Polish legal form of their company, will be the question of how employees can be legally seconded to carry out work in Germany related to the installation of panels or the construction of photovoltaic farms. Depending on the intensity and duration of the work to be carried out by the employees, they may be assigned to carry out this work under different legal arrangements. The nationality of the employee is also relevant. Depending on the fulfilment of certain criteria, an employee may carry out work in the form of the installation of photovoltaic panels within the framework of, among other things, the posting of employees for the temporary provision of services, business travel or possession of an ICT card. It is absolutely important to note that for employees coming from countries outside the European Union, it will generally be necessary to obtain a German Vander Elst visa, which entitles third-country nationals to work in Germany.
Industry qualification and additional tax and SOKA-Bau notification - how to avoid them?
An issue which, in practice, has a huge impact on the obligations of an entrepreneur who enters the German market with his photovoltaic business is the question of which branch his company will belong to. This is because in Germany, industry agreements play a colossal role, regulating the situation of individual industries, the obligations of the entrepreneur and the employees within them. In practice, companies installing photovoltaic panels are often faced with the dilemma of whether a company should be classified in the electronics or construction sectors.
The problem is complicated by the fact that industry arrangements do not indicate directly to companies in the photovoltaic industry - neither in terms of excluding such companies nor in terms of including them in the construction industry, whereby the catalogue of work that triggers qualification or exclusion from the construction industry is really extensive (altogether more than 50 types of listed work types). On the other hand, electrical installation companies are excluded from the construction sector, provided that they do not carry out construction work. Thus, as a rule, companies engaged in the craftsmanship of installing or maintaining electrical installations and equipment and offering the corresponding services, including the associated construction duties, will not be classified as being in the construction industry unless the construction activities in a calendar year represent more than 50 % of the company's total operating time.
As can be seen, answering the question of the qualification of a photovoltaic company unequivocally requires a very fine-grained analysis of the entire scope of work that the company performs over a given period of time, what its nature is and what the ratio of electrical work to other work is in the context of the applicable German industry regulations, and this analysis will be most effectively carried out by a lawyer specialising in this topic.
The result of this analysis determines the further obligations of the entrepreneur in the form of paying additional construction tax (Bauabzugsteuer) and declaring employees for insurance with the German SOKA-Bau. A foreign employer, but only in the construction sector, is obliged to register employees posted to Germany with the SOKA-Bau. The employer is also obliged to pay a contribution to the SOKA-Bau. The contribution is payable monthly and is calculated on the gross wage and amounts to 15.20 %. In the event of a delay in the payment of the contribution, SOKA-Bau will charge interest on the delay for each month of delay started. In addition, the holiday fund may initiate legal proceedings against the employer for a claim for payment of overdue contributions plus interest. Construction tax must be paid by contractors providing construction services. The construction tax is 15% of the amount of each invoice issued and must be paid to the competent German tax office. In this respect, however, it is possible to obtain an exemption from the tax indicated or to apply for a refund, in which we, as a law firm, also support our clients.
Entrepreneurs, if you are active in the photovoltaic sector and would like to find out more about the possibilities of entering the German market with your services, give us a call - we will be happy to talk to you and offer tailor-made solutions for your business.
