{"id":19758,"date":"2026-10-05T12:27:25","date_gmt":"2026-10-05T10:27:25","guid":{"rendered":"https:\/\/bktkancelaria.pl\/?p=19758"},"modified":"2026-10-05T12:27:25","modified_gmt":"2026-10-05T10:27:25","slug":"delegowanie-cudzoziemcow-do-niemiec-agencja-pracy","status":"publish","type":"post","link":"https:\/\/bktkancelaria.pl\/en\/posting-foreign-workers-to-germany-employment-agency\/","title":{"rendered":"Posting foreign nationals to Germany via an employment agency \u2013 when is this possible? A real-life case study"},"content":{"rendered":"

The posting of foreign nationals to Germany by employment agencies<\/strong> 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.<\/p>\n

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.<\/p>\n

We have discussed this issue in more detail in the article: A two-year waiting period for new temporary employment agencies \u2013 does a \u201enew\u201d agency really have to wait two years before it can employ foreign nationals?<\/a><\/strong><\/p>\n

However, resolving the issue on the Polish side turned out to be only the first step.<\/p>\n

The next question was:<\/p>\n

Can a foreign national whom a Polish agency is legally permitted to employ also be posted to Germany as a temporary worker?<\/strong><\/p>\n

The answer depends primarily on the employee\u2019s nationality, their specific residence status, the nature of their employment, and whether authorisation from the Bundesagentur f\u00fcr Arbeit is required on the German side.<\/p>\n

Being legally employed in Poland does not automatically entitle you to work in Germany<\/h2>\n

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.<\/p>\n

That\u2019s not the case.<\/p>\n

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.<\/p>\n

Therefore, when posting foreign nationals, it is not enough simply to check whether the person in question \u201eholds a residence card\u201d. It is necessary to establish the exact type of document, the grounds for its issue and the scope of the rights arising from it<\/strong>.<\/p>\n

Temporary work in Germany \u2013 an additional restriction for third-country nationals<\/h2>\n

In the case of our client, the German business partner expected cooperation under an agency model, that is, under a regime Arbeitnehmer\u00fcberlassung \u2013 the supply of workers<\/strong>.<\/p>\n

And this is precisely where a major obstacle arose.<\/p>\n

If a third-country national requires authorisation from the Bundesagentur f\u00fcr 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.<\/p>\n

This means that the diagram:<\/p>\n

Polish residence card \u2192 German work visa \u2192 referral by an agency<\/strong><\/p>\n

In many cases, it simply won\u2019t be possible.<\/p>\n

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 f\u00fcr Arbeit and have implications for the agency\u2019s own operations.<\/p>\n

Does the Vander Elst visa solve the problem?<\/h2>\n

When third-country nationals are posted to Germany, the issue of the so-called. visas Vander Elst<\/strong>.<\/p>\n

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 Arbeitnehmer\u00fcberlassung, however, the employee is seconded to the user employer and carries out work within that employer\u2019s organisation. Therefore, the Vander Elst procedure cannot be regarded as a simple way of replacing the regulations governing temporary agency work.<\/p>\n

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<\/strong>.<\/p>\n

We have also written more about this procedure in the following article: Will the CJEU challenge the Vander Elst visa procedure?<\/a><\/strong><\/p>\n

EU long-term resident status may open up another opportunity<\/h2>\n

However, an analysis of the documents relating to specific employees led us to a different solution.<\/p>\n

Some people owned property in Poland EU long-term resident status<\/strong>.<\/p>\n

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 f\u00fcr Arbeit for a period of up to 90 days within a 12-month period<\/strong>. Of particular importance to our client, we have also analysed the possibility of applying this solution in the context of temporary agency work.<\/p>\n

Whilst working on the case, we contacted the German ZAV Labour Market Access Competence Centre<\/strong>. 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.<\/p>\n

90 days does not imply automatic approval of the posting<\/h2>\n

The key requirement is to establish whether the employee\u2019s document actually confirms EU long-term resident status<\/strong>, 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.<\/p>\n

In practice, this means that, before assigning an employee to a post, the following, amongst other things, must be verified:<\/p>\n