The German labour market is very popular among temporary workers. Therefore, many temp agencies from Poland decide to begin cooperation with user employers from the Federal Republic of Germany. However, before they start sending employees to work on the western side of Oder, they should complete numerous formalities. One of these is to obtain the authorization to lend workers in Germany.
1. Authorization to lend employees – legal basis
A temporary employment agency which wants to start sending temporary workers to user employers in the Federal Republic of Germany should meet the requirements specified in both Polish and German law. In Poland, the legal act defining the conditions which a temp agency should fulfill is the Act of 9 July 2003 on the employment of temporary workers (i.e. Official Journal of 2019, item 1563, as amended). In Germany, the operational rules for temp agencies are set out in the Act on the lending of employees – Gesetz zur Regelung der Arbeitnehmerüberlassung (Arbeitnehmerüberlassungsgesetz – AÜG), hereinafter referred to as the ArbÜG. § 1(1) of the ArbÜG determines the requirement to obtain an authorization to lend employees. It clearly results from this provision that employers who, in the course of their economic activity, want to make temporary workers available to user employers must have an appropriate permit.
2. Rules that apply to foreign entities requesting authorization
In accordance with § 3(4) of the ArbÜG, citizens of EU Member States, as well as companies and legal persons registered under the law of EU Members States and having place of establishment, management board or principal place of business there, may apply for the authorization to lend workers in Germany under the same conditions as German nationals. This means that a Polish temporary-work agency which wants to request a permission for providing employees in Germany is subject to the same legal provisions as German entities.
3. Where should the request for authorization to lend workers in Germany be addressed?
Temporary employment agencies from Poland should submit the application for authorization to lend workers in Germany to the Federal Directorate of the Regional Employment Agency in Düsseldorf – Bundesagentur fur Arbeit, Regionaldirektion Nordrhein-Westfalen.
It should be noted that the territorial jurisdiction of the authority to which the request for authorization to lend employees in Germany should be addressed doesn’t depend on the Lands to which the applicant plans to send temporary workers. The German legislator made the competence of regional directorates to consider the application in question dependent on the applicant’s country of origin.
The permit is issued upon application. It takes the shape of the official form.
The following documents should be attached to the application:
- a document confirming the entry in the Register of Entities Running Employment Agencies in Poland;
- a printout from the Central Evidence and Information on Economic Activity or an extract from the National Court Register – depending on the legal form of the temporary-work agency which submit the application;
- a certificate from the Tax Office on no arrears in the payment of taxes;
- a certificate from the Social Insurance Institution of no arrears in the payment of contributions;
- a certificate of no criminal record from the National Criminal Records Register;
- a confirmation of the possession of funds in the amount of EUR 10,000.00 – The temp agency applying for the first time should have a financial security of EUR 10,000.00. The agency requesting for renewing the authorization, should have funds of EUR 2,000.00 for each temporary worker posted to Germany, but not at least EUR 10,000.00. The document confirming the possession of appropriate funds is a bank account statement or a promise issued by a bank;
- a model contract with a temporary worker;
- a model contract with the user employer;
- a consent to inspection of company documents;
- a consent to verify information in the Tax Office.
All documents accompanying the request must be submitted with a German translation made by a sworn translator.
The application may be sent both by traditional postal mail and via e-mail.
5. Fee due for application
On 1 October 2021, a new tariff of fees due for application for the authorization to lend workers in Germany came into force. The amount of the fee depends on the labour input related to the examination of the request. Until now, the amount of the fee depended solely on whether the application concerned a fixed-term or an indefinite permit.
Currently, the fees are:
- EUR 377.00 – fee for the first application;
- EUR 218.00 – fee related to request for renewing a fixed-term permit, without carrying out the inspection;
- EUR 2,060.00 – application for renewing an authorization for an indefinite period, with standard control;
- EUR 1,316.00 – request for renewing an authorization for an indefinite period, with limited control (The limited control is used in special cases, e.g. a small number of temporary workers transferred to Germany).
6. Period for which the authorization is issued
As a general rule, the permit is issued for a fixed period of one year. However, it may be granted for an indefinite period. It occurs when the temp agency has received the authorization to lend workers in Germany for three consecutive years preceding the submission of the application for an indefinite period (§ 2(4, 5) of the ArbÜG).
The request for the extension of the authorization should be made not later than three months before the end of the year for which the permit was issued. The permission is renewed for another year if the licensing authority doesn’t refuse to extend it before the end of the year. In case of refusal to renew the authorization, the agreement to the execution of contracts already concluded and concerning the transfer of temporary workers applies as a continuation, but for not more than twelve months (§ 2(4, 5) of the ArbÜG).
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.