New Requirements for Posting Workers from Serbia to Germany
Construction workers have been for decades sent by their Serbian employers to carry out construction works or related services in Germany, on a temporary basis, as intra-group postings or through contracts of works/services.
For more than thirty years, such postings are carried out under the inherited Bilateral Agreement from the Socialist Federal Republic of Yugoslavia which entered into it with the German Federal Republic (‘Deutsche Bundesrepublik, DBR’), which agreement (“Detachment”) was signed on 24 August 1988 and ratified the following year just before the fall of the Berlin Wall.
Based on the Detachment, it is possible to annually post a pre-approved contingent of workers to Germany for performance of construction and similar works in a way which is determined by the Serbian Chamber of Commerce (“SCC”).
And for the new 2020/21 detachment year, for which specific quotas should be known as of mid of November 2020, the SCC raised the bar by tightening criteria through more stringent requirements for the local companies that plan to send workers abroad.
But, before laying down new criteria, this article shall briefly touch upon the involved competent authorities and posting process that can be, for the sake of simplification, divided into three parts.
The relevant authorities for taking applications and issuing documentation for posting of workers are SCC, in charge for issuing consents for detachments, then the Employment Agency in Stuttgart (‘Agentur für Arbeit Stuttgart’) which is in charge for work visas for such workers, and finally the German Embassy in Serbia (“Embassy”) which is in charge for stay visas, if a number of posted workers is less than 5 (otherwise SCC is in charge).
The posting process revolves around the aforementioned specific authorities and their competences, and therefore, it includes three separate, but connected, procedures before the SCC, the Employment Agency in Stuttgart and the Embassy or the SCC.
Consent for Detachment
The requirements which a company from the Republic of Serbia that intends to post its employees to Germany („Detacher“) must meet in order to obtain the consent for detachment from SCC have been partially amended by the said authority’s most recent official decision adopted/issued in August 2020.
To that end, the updated criteria for obtaining the consent are the following:
- The Detacher must have its registered seat in the Republic of Serbia;
- The Detacher must be registered to perform the activity for which employees are posted to work in Germany;
- The Detacher must have its representative office / business unit in Germany, or alternatively has obtained a confirmation from the competent authority in Germany that the Detacher has initiated the procedure of opening a representative office / business unit;
- Detacher must have at least two regular annual financial reports submitted to the Serbian Agency for Business Registers;
- At least 10% of the Detacher’s total business income is generated in the Republic of Serbia (while, starting from 1 April 2022, this minimum will be 25%);
- The Detacher’s business account has not been blocked for more than 14 days continuously for a period of one year prior to the submission of the request for allocation of detachment;
- The number of the Detacher’s appointed workers does not exceed 80% of the total number of employees (the previous criterion predicted a maximum of 90% of the total number of employees);
- That total business revenue of the Detacher amounts over RSD 12.000.000 (approx. EUR 100.000) in the previous year (whereby this criterion will start to apply as of 1 April 2021).
The SCC is authorised to ask for additional documentation from the applicant, based on which it shall assess the fulfilment of the conditions, for issuing the consent.
Nevertheless, if the Applicant proves that the above conditions are met, the consent shall be awarded and the company may proceed to the next step of the process.
Agentur für Arbeit Stuttgart
The second step of the procedure is solely conducted before the Employment Agency in Stuttgart, which holds exclusive authority to issue work permits for workers coming to Germany.
After obtaining work permits from the Stuttgart Employment Agency, the visa application procedure shall ensue.
If visas are needed for five or more workers, then applications (and all other necessary documentation) are submitted to the SCC.
Otherwise, the application(s) must be submitted to the Embassy.
In order to obtain a stay visa for each worker who has obtained a work permit, the following is required:
- Request for a national visa;
- 2 completed and signed copies of the informant;
- Photocopy of passport – personal data page, all pages with visas, stamps and notes;
- 2 photos;
- Fee: EUR: 35 for visas for stays of up to 3 months, EUR 75 for visas for stays of more than 3 months;
- Listing from pension and disability insurance + 2 photocopies; form 101 and form 106;
- Certificate of sufficient health insurance;
- Work permits for workers under the Detachment;
- Proof of professional qualification of workers;
- Employer’s employment confirmation.
After obtaining stay visas, workers may be sent to work in Germany within the period of time for which the work permit and visa were issued.
This is for informational purposes only, and is not intended to provide, and should not be relied on for, legal or consulting advice. As a result, you should always consult your own advisors before engaging in any of the aforementioned procedures.