The posting of foreign nationals to Germany by employment agencies requires a separate analysis of Polish and German law. The mere fact that an employee is legally employed in Poland does not in itself mean that they may carry out temporary work in Germany.
In one of the cases handled by our law firm, we analysed the situation of a new Polish employment agency which was planning to send several employees of different nationalities and with different residence statuses to Germany. The first issue was the two-year waiting period applicable in Poland to new employment agencies. On this matter, our firm obtained a statement from the Ministry of Family, Labour and Social Policy confirming that the restriction does not apply to all foreign nationals. The Ministry pointed out that new agencies may currently provide services to Ukrainian nationals using the notification mechanism without having to wait two years. Importantly, this also applies to placing such individuals in jobs abroad.
We have discussed this issue in more detail in the article: A two-year waiting period for new temporary employment agencies – does a „new” agency really have to wait two years before it can employ foreign nationals?
However, resolving the issue on the Polish side turned out to be only the first step.
The next question was:
Can a foreign national whom a Polish agency is legally permitted to employ also be posted to Germany as a temporary worker?
The answer depends primarily on the employee’s nationality, their specific residence status, the nature of their employment, and whether authorisation from the Bundesagentur für Arbeit is required on the German side.
Being legally employed in Poland does not automatically entitle you to work in Germany
One common misconception is the assumption that a Polish residence card and legal employment with a Polish employer automatically allow a foreign national to work in another European Union country.
That’s not the case.
The possibility of working in Germany must be assessed separately on the basis of German residence law and the regulations governing employment. This is of particular importance in the case of third-country nationals, i.e. persons who are not nationals of an EU Member State, an EEA country or Switzerland. In the case we analysed, some of the employees held standard Polish residence cards, some had long-term EU resident status, whilst one of the employees was a Polish national. From the point of view of their ability to work in Germany, their situations were therefore different.
Therefore, when posting foreign nationals, it is not enough simply to check whether the person in question „holds a residence card”. It is necessary to establish the exact type of document, the grounds for its issue and the scope of the rights arising from it.
Temporary work in Germany – an additional restriction for third-country nationals
In the case of our client, the German business partner expected cooperation under an agency model, that is, under a regime Arbeitnehmerüberlassung – the supply of workers.
And this is precisely where a major obstacle arose.
If a third-country national requires authorisation from the Bundesagentur für Arbeit to take up employment, German regulations impose significant restrictions on the possibility of obtaining such authorisation in the case of employment as a temporary worker.
This means that the diagram:
Polish residence card → German work visa → referral by an agency
In many cases, it simply won’t be possible.
Incorrectly assigning an employee may not only call into question the legality of their employment. German regulations also provide for severe financial penalties, and any irregularities identified during an inspection by the Zollverwaltung may be referred to the Bundesagentur für Arbeit and have implications for the agency’s own operations.
Does the Vander Elst visa solve the problem?
When third-country nationals are posted to Germany, the issue of the so-called. visas Vander Elst.
The Vander Elst procedure may apply to the temporary provision of cross-border services. However, a clear distinction must be made between the traditional provision of services and temporary agency work. In the service model, the Polish entrepreneur remains the entity organising and supervising the work of their employees and is responsible for the performance of a specific service. In the case of Arbeitnehmerüberlassung, however, the employee is seconded to the user employer and carries out work within that employer’s organisation. Therefore, the Vander Elst procedure cannot be regarded as a simple way of replacing the regulations governing temporary agency work.
In the course of our analysis, we have confirmed that The Vander Elst visa is not the appropriate route for posting carried out under the temporary agency model.
We have also written more about this procedure in the following article: Will the CJEU challenge the Vander Elst visa procedure?
EU long-term resident status may open up another opportunity
However, an analysis of the documents relating to specific employees led us to a different solution.
Some people owned property in Poland EU long-term resident status.
This is not an ordinary residence card. The status of an EU long-term resident also confers a special position on its holder when moving between Member States. In the case under consideration, the relevant German regulations allowed, in certain situations, a person holding EU long-term resident status issued in another Member State to work temporarily in Germany without a German national visa and without a separate permit from the Bundesagentur für Arbeit for a period of up to 90 days within a 12-month period. Of particular importance to our client, we have also analysed the possibility of applying this solution in the context of temporary agency work.
Whilst working on the case, we contacted the German ZAV Labour Market Access Competence Centre. The opinion received confirmed that the interpretation we put forward is, in principle, possible, provided that additional requirements are met. This does not, therefore, mean that every person holding a Polish residence card can automatically be sent to Germany for 90 days.
90 days does not imply automatic approval of the posting
The key requirement is to establish whether the employee’s document actually confirms EU long-term resident status, rather than merely holding an ordinary Polish residence permit. In the case in question, employees holding ordinary residence cards could not rely on the same legal basis as those with EU long-term resident status.
In practice, this means that, before assigning an employee to a post, the following, amongst other things, must be verified:
- type of residence permit,
- the grounds for its issuance,
- the status of a specific foreign national,
- planned period of employment in Germany,
- the nature of the work carried out.
Two employees of the same nationality, both holding residence permits issued in Poland, may have completely different options for working legally in Germany.
A Polish agency must, in fact, operate in Poland
Another key condition is that the company and the employee have a genuine connection with Poland. In the position statement received from the ZAV, it was pointed out that the Polish agency should conduct carry out genuine business activities in Poland and have a real economic presence. It cannot merely be a formally registered entity whose activities, in practice, amount to the continuous supply of staff to Germany. Employees must be genuinely employed by the Polish agency, receive their remuneration from it and remain in an employment relationship with it throughout the posting.
In the event of an audit, therefore, it will not only be the information contained in the company’s registration documents that is relevant, but also what the business is actually like.
You cannot simply replace staff every 90 days
The 90-day limit also calls for caution. One might be tempted to devise a scheme whereby one employee works in Germany for 90 days, then returns to Poland, and is replaced by another person. Such an arrangement will not always be safe. When assessing whether the activity is genuinely of a temporary nature, it is not only the period of employment of a specific person that matters, but also the frequency, regularity and continuity of the entire cooperation model. A German company’s ongoing need, met by rotating staff every 90 days, may be regarded as an attempt to circumvent the requirement for temporary employment. Therefore, when planning a long-term contract, it is necessary to analyse not only the situation of an individual employee, but the entire business model.
What other requirements must the agency on the German side meet?
Resolving the issue of a resident employee does not mean that one’s obligations are over.
If the arrangement is classified as ‘Arbeitnehmerüberlassung’, the Polish agency must also take into account the requirements under German law The Temporary Agency Work Act – AÜG.
Depending on the specific model, the following factors, amongst others, may be relevant:
- holding the appropriate licence for the temporary agency work scheme,
- the correct classification of the contract as a contract for the secondment of staff,
- the identification of specific individuals to be referred to the user organisation,
- compliance with the rules governing terms and conditions of employment and remuneration,
- compliance with restrictions on the duration of the loan,
- review of additional sector-specific restrictions.
Contracts relating to the following areas require particular caution: the construction industry, for which German legislation imposes additional restrictions.
That is why, before signing a contract, it is not enough simply to answer the question:
„Can an employee enter Germany?”
At the same time, you need to check whether they can work there, under what arrangements they can work, for how long, and whether the agency itself holds the necessary authorisation to provide the service in question.
What about Ukrainian nationals employed by the new agency?
In the case of the agency we were analysing, the problem had yet another dimension. It was a relatively new organisation, so it was first necessary to establish whether it was permitted to provide services to foreign workers before the expiry of the two-year waiting period stipulated by the Labour Market and Employment Services Act. With regard to Ukrainian nationals covered by the notification mechanism, we received written confirmation from the Ministry of Family, Labour and Social Policy that the two-year waiting period does not apply.
The Ministry has also confirmed that this applies to placing people in jobs abroad with foreign employers.
And this is precisely where the difference between Polish and German law becomes abundantly clear. The fact that Polish legislation allows a start-up agency to employ a Ukrainian national and provide them with a service arranging employment abroad, does not automatically mean that the person in question is entitled to undertake temporary work in Germany. Having carried out an analysis under Polish law, the next step is therefore to examine the employee’s situation in accordance with German residence regulations and the regulations governing the temporary agency work scheme (Arbeitnehmerüberlassung).
What have we done regarding the client?
In the case described, it was not possible to provide a single answer for the entire group of employees. We therefore analysed the status of each person individually.
In particular:
- we have verified whether the new agency can employ individual foreign nationals under Polish law,
- we have received a written statement from the Ministry regarding the scope of the two-year grace period,
- we have analysed the German restrictions on temporary work by third-country nationals,
- we have assessed the feasibility of applying the regulations concerning long-term EU residents,
- we have received the German ZAV’s opinion on the model under consideration,
- we have analysed the requirements set out in the Arbeitnehmerüberlassungsgesetz,
- We have indicated which employees the specific model may apply to, and in which cases it is necessary to seek a different legal basis.
As a result, instead of a single answer of „yes” or „no”, what emerged was an operating model based on the individual status of a specific employee. And it is precisely this approach that is required when employing foreign nationals across borders.
The most common mistake? Treating all residence cards in the same way
From a business practitioner’s perspective, the most important takeaway from this case is simple:
Not every residence card grants a foreign national the same scope of rights.
Among other things, the following are significant:
- type of stay,
- the basis for access to the Polish labour market,
- citizenship,
- the nature of the work carried out,
- length of stay in Germany,
- a model for cooperation between the Polish agency and the German company.
Hence the diagram:
legal residence in Poland → moving to Germany → legal employment in Germany
is an oversimplification.
In the case of temporary work, there is an additional layer of regulation – the German legislation on the supply of workers (Arbeitnehmerüberlassung).
Posting foreign workers to Germany via an employment agency – what should you check before signing a contract?
Before commencing a working relationship with a German business partner, the agency should, as a minimum, establish:
- Can he or she legally employ this foreign national in Poland?
- On what grounds is a foreign national permitted to reside and work in Poland?
- Does he have EU long-term resident status, or just a standard residence permit?
- Is the planned collaboration the provision of a service or the supply of temporary workers?
- Do you need a permit from the Bundesagentur für Arbeit to work in Germany?
- Is there an exception to this obligation in respect of a particular employee?
- Does the Polish agency actually operate in Poland?
- Is the referral really only temporary?
- Have the requirements of the German AÜG been met?
- Are there any additional restrictions applicable to the sector in which the employee will be working?
Only by answering this whole set of questions can one assess whether a particular model can be safely implemented.
Do you run an agency and are you planning a contract in Germany?
In the case of cross-border temporary work, the legal employment of a foreign national in Poland is only the starting point for the analysis.
At the International Law Practice, we verify both the Polish legal basis for an employee’s employment and residence, and their eligibility to work in the host country. We analyse the model of cooperation with a foreign contractor, staff documentation, the required permits and the obligations arising from the regulations on temporary work and the posting of workers.
In the case of Polish-German contracts, we also work directly with German legislation and the practices of the relevant German authorities.
If you run an employment agency and are planning to place foreign nationals in jobs in Germany, it is worth checking the arrangements before signing the contract and sending the first employee.
Please contact our firm to request an analysis of your agency’s business model.
Frequently Asked Questions
Does a Polish residence card allow a foreign national to work in Germany?
Not automatically. The ability to work in Germany depends, amongst other things, on the type of residence permit, the employee’s nationality, the nature of the work carried out and German regulations. Legal residence and employment in Poland do not automatically confer the right to work in Germany.
Can a Polish employment agency post a third-country national to Germany?
In certain cases, this may be possible. However, temporary employment of third-country nationals is subject to additional restrictions under German law; therefore, each employee’s situation must be assessed on a case-by-case basis.
Can an EU long-term resident work in Germany for 90 days?
In certain situations, a person holding EU long-term resident status granted in Poland may benefit from regulations allowing them to work temporarily in Germany for up to 90 days within a 12-month period without a German national visa or separate authorisation from the Bundesagentur für Arbeit. However, this is not an automatic entitlement – additional conditions must be met.
Does the Vander Elst visa allow you to work on a temporary basis through an agency?
Posting in the context of the provision of services must be distinguished from Arbeitnehmerüberlassung. It is clear from the findings in the case under consideration that the Vander Elst visa was not the appropriate solution for the temporary work model operated by the agency.
