One of the formalities which must be completed in connection with the departure of the employees to Germany is a posting declaration to the Customs Office. The failure to respect this obligation constitutes an offence punishable by a fine.
1. Legal basis
1.1 Union legislation
In Article 9 of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”), the EU legislator has provided for the possibility for Member States to introduce the administrative requirements and control measures necessary to ensure effective monitoring of the legality of posting. Such a measure is, among others, the requirement for the posting employer to submit a declaration to the national authorities of the country of secondment, containing information that allows an inspection of the factual situation at the workplace. This document should contain, in particular: the identifying information of the service provider, the expected number of posted workers with data allowing their identification, the details of a contact person, the envisaged duration of the posting, the anticipated dates of the beginning and end of the posting, the address(es) of the workplace and the nature of the services justifying the posting.
1.2 German legislation
The German authorities have made use of the possibility to introduce the obligation to report the posting. The necessity of notifying the posting to the German Customs Office is provided for in the following legal acts:
- § 16 of the Minimum Wage Act (Gesetz zur Regelung eines allgemeinen Mindestlohns (Mindestlohngesetz – MiLoG) in connection with § 2a of the Act on combatting undeclared work (Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung (Schwarzarbeitsbekämpfungsgesetz – SchwarzArbG)
The abovementioned provisions require a declaration from an employer providing services in the following industries:
– construction,
– food service and hotel business,
– passenger transport,
– transport of goods, freight forwarding and logistics,
– field trade,
– forestry companies,
– building cleaning,
– assembly and disassembly of installations at fairs and exhibitions,
– meat industry,
– prostitution,
– safety and security.
- § 18 of the Act on mandatory working conditions concerning for employees posted abroad and regularly employed in Germany (Gesetz über zwingende Arbeitsbedingungen für grenzüberschreitend entsandte und für regelmäßig im Inland beschäftigte Arbeitnehmer und Arbeitnehmerinnen (AEntG)
Pursuant to this provision, entrepreneurs from the following industries are required to make a notification:
– waste management, including street cleaning and winter service,
– building cleaning,
– education and training services according to the second or third book of the Social Code,
– construction,
– care services,
– meat industry,
– roofing commerce,
– electric craft,
– scaffolding trade,
– painting and lacquering trade,
– chimney sweeping services,
– stone and sculpting crafts.
- § 17b of the Act on temporary work (Gesetz zur Regelung der Arbeitnehmerüberlassung (AÜG)
This provision establishes the obligation to declare posted workers in any case, regardless of the industry.
2. Posting of drivers
From 2 February 2022, the provisions of the German Minimum Wage Act (Gesetz zur Regelung eines allgemeinen Mindestlohns (Mindestlohngesetz – MiLoG) also appy to cross-border transport. However, there are exceptions from to this rule. They concern:
- transit journeys;
- bilateral transport;
- combined transport;
- cabotage transport.
In cases where the provisions of the Minimum Wage Act don’t apply, Article 1(11)(a) of the Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012 apply to the registration procedure. This provision stipulates the obligation of posting declaration made by carrier established in another Member State to competent national authorities of the Member State to which the driver is posted. The notification should be submitted at the latest when the posting starts, using the multilingual standard public interface form linked to the Internal Market Information System (IMI).
3. Form of submitting the application
The posting of employees to Germany should be notified to the German Customs Office – Zollamt, before the work starts. The declaration should be submitted electronically. This requires completion of the application form available on the website: http://www.meldeportal-mindestlohn.de/. The notification can’t be made in a different way.
The notification portal is available in German, English and French.
4. Declaration
The use of the electronic notification portal requires the creation of a user account. For this purpose, the e-mail address, login, first name and surname, company’s name, exact address, country of origin must be provided.
Only after the account has been created, it’s possible to declare the posting of employees to Germany.
Submitting the application requires providing of the employment data, i.e.:
- industries;
- address of the place of employment (street, street number, postal code, locality);
- start of employment and expected date of termination;
- information on the location where the employee documentation is kept in Germany (exact address and first name, surname or company’s name which stores the documents);
- details of a contact person (first name and surname, date of birth, street, street number, postal code, locality);
- data concerning a representative ad litem (first name and surname, date of birth, street, street number, postal code, locality);
- details of posted workers (first name and surname, date of birth, start of employment in Germany and expected date of termination of secondment).
The data of the posting employer are entered into the application form automatically, based on the information provided during the creation of the account.
At the end of the form, the posting employer states that he/she complies with the working conditions applicable in Germany.
5. Confirmation of application
One the notification has been accepted, the posting employer will receive the confirmation of application which must be printed and kept in the event of an inspection. It constitutes a proof which acknowledges making the declaration.
6. Penalties
An employer who sends workers to Germany without the posting declaration is liable to a fine of EUR 30,000. The same penalty may be imposed for incorrect, incomplete notification or its wrong form, as well as the failure to submit the information within the prescribed time-limit.
7. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
