Compliance: First time an employee is employed in Germany

Payroll accounting is already sufficiently complex for many German entrepreneurs. Foreign enterprises, who want to employ for the first time an employee in Germany, often do not suspect yet at all, what comes up to them.

We give a first outline of what foreign employers should consider with regard to German social security, tax, and labor law before they buy a ticket to Germany for their employees.

Employ employees in Germany

As the largest economy in Europe, Germany is an important trading partner for internationally operating companies.
If companies based outside Germany wish to employ a representative in Germany for the first time, they should contact

• social security law
• tax law and
• Employment law

Aspects thoroughly in advance.

Because in many cases German law applies to employees working in Germany, even if they are foreign nationals who are not resident in Germany. In particular, they act in breach of the regulations if they work without the necessary residence permit.

This wage update only provides a first overview of the issues that should be considered in order to comply with German law. Irrespective of this, every company must examine which national legal requirements must be taken into account when employing an employee in Germany.

What are the possibilities?

In the following, we explain three models for companies that wish to employ an employee in Germany for the first time as part of a project or a representative office. These models clearly show the extent to which German social security and tax law must be observed:

• Posting of an employee to Germany
• Transfer (permanent posting) of an employee to Germany
• (temporary) new employment of an employee in Germany

Secondment of an employee

The foreign company sends an existing employee to Germany for a short or limited period of time. The employment relationship with the foreign employer remains in place.

With this model, there is the greatest need for clarification, since social security and especially tax exemption under German law can only exist to a narrowly regulated extent.

Social security obligation and secondment

Sending an employee to Germany may have the advantage that the employee may not be subject to social security contributions in Germany.

For this purpose, the secondment must be in the sense of irradiation according to § 5 of the 4th Social Security Code (SGB IV) and the regulations of the SGB IV may not contradict any deviating regulations from supranational and intergovernmental law (§6 SGB IV). Such deviating provisions may, for example, result from independent interstate social security agreements.

The most important prerequisite for an assignment in the sense of radiation is that the activity is limited in time in advance. The time limit can be stipulated by the contract, but it can also result from the specific nature of the employment (e.g. participation in clearly defined projects).

The maximum duration of the secondment is not provided for in § 5 SGB IV. However, deviating interstate jurisdiction regulations can again determine a maximum duration of stay, depending on the country from which the assignment is made.
Furthermore, it can be important for the assessment of the social security obligation whether

• the activity is performed in Germany for the foreign employer
• another employee is replaced within the scope of the secondment.

Taxation of income

In principle, the German state has a right of taxation on the remuneration of a foreign employee if his work is carried out in Germany.

The right of taxation only remains in the state of the sending company if

• the employee stays in Germany for less than 184 days within 12 months
• the remuneration is paid by or on behalf of an employer who is not resident in the State in which the work is carried out, and
• the employer has no permanent establishment in Germany.

It should also be noted that the exact definition of the 183-day rule and the term "permanent establishment" can be found in the respective double taxation agreement (DTA) between Germany and the state from which the posting is made.

In a large number of cases, the employee posted to Germany and working here becomes taxable in Germany at least for the income earned from his or her work. In order to avoid double taxation, there are DTAs with many countries that regulate which income is taxed in the country of employment or residence.

Transfer of an employee to Germany

The foreign company transfers an existing employee permanently to Germany. The employee establishes a residence in Germany and is domiciled here.
A secondment in the sense of irradiation is not given with a permanent transfer, since there is no time limit. The employee is therefore subject to the social security obligation in Germany.
The residence of the employee in Germany means that the employee is subject to unlimited tax liability in Germany, i.e. his global income is taxable in Germany.

Employment of an employee in Germany

The foreign company recruits an employee resident in Germany. Of course, in this case, the employee is also subject to social security and tax liability in Germany.
What follows from social security and tax liability?
As soon as the employee of a foreign company becomes subject to social security contributions or wage tax in Germany, foreign employers are obliged to independently pay social security contributions and taxes to the German institutions.
In this case, it is advisable to entrust a service provider based in Germany with the payroll accounting, which reliably takes over the calculation of taxes and duties and also handles the payment transactions.

Labour law aspects

Employers based abroad must observe certain labor law standards in Germany according to the Employee Secondment Act. The employer must grant the working conditions applicable in Germany.
Regulations in this regard can be found, among others, in the:

• Minimum wage law
• Illegal Employment Act
• SGB II and III (education and training)
• SGB IV (obligation to report immediately).

If qualified and well-paid knowledge workers are sent to Germany, these standards are usually met without any problems. An examination is nevertheless recommended.
In addition, third-country nationals may only work in Germany if they have a residence permit that allows them to do so, although there are exceptions to this rule.

Conclusion

Due to the many possible case combinations that can occur when the first employee of a foreign company is employed in Germany from

• State of residence of the foreign company and thus applicable interstate law,
• Nationality of the employee,
• Type and structure of the employment relationship,
• Type and scope of activity in Germany,
• Arrangement of the stay in Germany

a well-founded, professional consultation of the project is absolutely recommended in individual cases.
In many cases, employees are subject to social security and tax obligations. Foreign employers must ensure that taxes and contributions are calculated and paid correctly.