Background:
A Swiss company wants to deploy employees from Switzerland for a project in Germany. However, the best-qualified employees have neither EU nor EEA citizenship but are so-called "third-country nationals".
Since the employees will only be in Germany for a few weeks, they will keep their Swiss residence. There are no plans for them to take up residence in Germany. The employees are well-educated. They have completed STEM degrees and have several years of professional experience.
Question:
What does the HR department need to do to assign the employees from Switzerland to Germany from an administrative point of view?
Possible solutions:
Work permit
Since the employees in question are third-country nationals who do not reside in Germany, a sub-form of the so-called Vander-Elst visa can be used here. This is required for the provision of services based on the Agreement on the Free Movement of Persons-EC/Switzerland. It should be noted that this is a derived variant for Switzerland and, therefore, the 3-month exemption limit for third-country nationals found on the Internet is not applicable in this case. It is therefore mandatory to apply for a visa to be able to provide services in Germany.
The visa can be applied for at the German embassy in Bern. Prior approval from the Aliens' Registration Office or the Federal Employment Agency in Germany is not required. However, the activity may not last longer than 90 days within 180 days in Germany.
To apply for a Vander-Elst visa, certain documents must be submitted, including confirmation from the employer of the service contract in Germany, copies of the employment contract and payslips, and evidence of the third-country national's proper employment with the Swiss company.
In addition, confirmation is required that at least the minimum wage or the industry minimum wages applicable under the Employee Posting Act will be paid during the secondment to Germany and that sufficient health insurance coverage is available.
Reporting requirements
In addition to the Vander-Elst visa, so-called registration obligations must also be carried out in Germany. In principle, the registration according to the Minimum Wage Act and the registration according to the Posted Workers Act must be observed.
Whether the employer has to carry out the declarations or whether the declarations can be waived depends not only on the level of remuneration but also on the activities of the employees or the company sector.
Taxes
Tax liability in Germany cannot yet be ruled out based on the facts of the case. In principle, the sub-aspects of the so-called 183-day rule from the double taxation agreement between Germany and Switzerland should be checked to determine the tax liability.
If all 3 aspects of the 183-day rule apply (less than 183 days per calendar year in Germany, no salary payment in Germany, no assumption of costs by a permanent establishment in Germany), the next step is to check whether there is an "economic employer" in Germany. If this is also not the case, it can be assumed that the employees are not liable for tax in Germany and that all taxes are owed in Switzerland.
Social security
As with other (short) foreign assignments of employees, it is also necessary to obtain the relevant social security certificates (analogous to A1) to document the insurance in the Swiss system and the exemption from the German social security insurance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
