Posting (social security)
A posting occurs when an employee temporarily moves outside the scope of German social security law on the instructions of the German employer and is involved in a foreign company so that he also pays taxes and other fiscal charges to the local authorities. In this case, the compulsory insurance as an employee in the German social insurance continues (so-called broadcast , § 4 I SGB IV). Conversely, those who only work temporarily in Germany under the same conditions as an employee of a foreign company in a German company are not subject to German social insurance (so-called radiation , Section 5 I SGB IV). Both apply accordingly to the self-employed who are subject to social insurance, § 4 II, § 5 II SGB IV. Special rules apply to migrant workers for employees within the European Union . Further exceptions can result from social security agreements. These are exceptions to the principle of residence, according to which German social law is generally applicable to all those affected who have their place of residence or habitual abode within Germany, Section 30 SGB I.
General
A posting exists under certain conditions. It is the radiance or irradiation . For the sake of simplicity, only employees will be dealt with in the current section.
Material social security relationship
A material social security relationship is established with the commencement of employment subject to social security insurance ( Section 7 SGB IV). It does not matter whether there is an effective employment contract or whether the employer has reported the employment to the responsible collection agency .
Employment subject to social insurance
In principle, according to Section 3 of SGB IV, there is employment subject to social insurance contributions if people are employed in the territorial scope of SGB IV, i.e. in Germany (so-called territoriality principle).
Exceptions to this principle are governed by the regulations on broadcasting and irradiation ( Section 4 and Section 5 of Book IV of the Social Code) if the employee is obliged to take out insurance in the event of cross-border employment.
In § 6 SGB IV, however, it is made clear that deviating regulations of international and supranational law remain unaffected and therefore take precedence and therefore German social security law is not applicable.
Concept of posting
Unless otherwise specified, the following conditions must always be met when posting. It must
- have an employment relationship abroad,
- the employee goes to Germany on the instructions of the employer and
- the employee remains integrated in the foreign company.
The same applies to posting abroad from Germany.
Posting according to SGB IV
If an employee is posted for employment in Germany in the form of radiation in accordance with Section 5 SGB IV, he is not subject to the territorial scope of SGB IV and is therefore not subject to social security contributions in Germany.
The prerequisite for irradiation is that
- a foreign employment relationship exists,
- the employer sends the employee to Germany and
- the domestic activity is contractually limited in advance or due to the nature of the posting. There is no fixed maximum time limit.
The broadcast according to § 4 SGB IV is the opposite of the broadcast.
Posting according to international and supranational law
Due to the priority of application, inter- and supranational law must be dealt with below. Its effects are of considerable importance.
EU law
The . Regulation (EC) No 883/2004 (WanderarbeitnehmerVO) and . Regulation (EC) No 987/2009 (WanderarbeitnehmerDVO), as last amended by Regulation (EU) 465/2012, displaced dispatches within the EU / EEA - States and Switzerland the general regulations of SGB IV (with some special features regarding the scope).
The Migrant Workers Regulation only applies
- for employees and self-employed,
- for nationals of a member state, refugees within the meaning of the Geneva Conventions or stateless persons and
- for employees of other nationalities if they are legally domiciled in a Member State (exceptions apply to Denmark and Great Britain ) and
- work in another member state.
The scope extends to all branches of social insurance.
The Migrant Workers' Regulation contains conflict of laws rules. An employee who is employed in a member state may only be subject to the social security law of one member state (Art. 11 Migrant Workers Regulation). This is the state in which the employee is employed, regardless of the domicile and seat of his employer (basic rule).
In the case of postings expected to be less than 24 months, Art. 12, 13 Migrant Workers Ordinance provides as an exception that the social security law of the employee's country of posting applies if
- the employee by the company that is based in a member state and
- performs a "usually significant activity" there,
- is posted,
- to carry out activities there on behalf of the company,
- he is usually employed by the company and
- does not replace an employee whose posting period has expired.
The posting certificate A1 (formerly E-101) serves as proof that the posted worker is still subject to the social security law of the posting country.
This is also required for all transit countries, for example if you are a truck driver driving goods from your home country to a destination country.
On the other hand, if you work as a German fitter in Italy on a temporary basis, you do not need an A1 certificate for Austria.
Bilateral agreements
Germany has also concluded social security agreements with some countries that only apply between Germany and the contracting state. These agreements are based on international treaties that have become part of federal law through laws.
The bilateral agreements apply when an employee is posted from one of the contracting states to the other contracting state. With a few exceptions, the nationality of the employee is irrelevant. The agreements do not generally apply to all branches of social security. In this respect, the national legal provisions apply again, i.e. also the principles of broadcasting and irradiation according to Sections 4, 5 SGB IV. In addition, the agreements provide for different periods of time for the continued application of German legal provisions. An extension of the period, as in the case of the Migrant Workers Regulation, is not generally provided for.
Agreements between Germany and other EU countries have basically been suspended by the Migrant Workers' Regulation. However, agreements concluded before the Migrant Workers' Regulation continue to apply insofar as they provide more favorable regulations for the employee.
The term posting is generally linked to the respective national term of posting of the state that issued the posting certificates. However, minimum requirements must be met in the event of a posting. These are regulated in the respective agreements, which are almost identical in words.
According to Art. 7 of the German-Hungarian Social Insurance Agreement, a posting occurs only “if an employee who is employed in a contracting state is posted by his employer to the other contracting state within the framework of this employment relationship in order to carry out a job for this employer . “With regard to this employment, the social security regulations of Hungary and the posting state continue to apply during the first 24 calendar months - this period is different in the various agreements - as if the employee were still employed there.
Proof that the posted worker is (in part) subject to the social security law of the agreement state is provided by the relevant posting certificates from the respective agreement (e.g. D / USA-101 for USA, D / H-101 for Hungary).
Issuing authority of the posting certificate
The responsible social security agency issues an A1 certificate. In Germany, this is generally done by the German Liaison Office for Health Insurance Abroad (DVKA) in Bonn. The certificate shows which social security law is applied.
Application and period
In principle, an A1 certificate must be applied for in advance from the competent authority for every posting to another Member State. The A1 certificate can, however, also be issued retrospectively (Art. 15 Para. 1 Migrant Workers GDPR, ECJ judgment “Banks”). If you cannot show an A1 certificate to the examining bodies in the country of employment, you should submit a copy of the current application for issuance of the A1 certificate. In Austria, it is advisable to also bring proof of registration for social security in Germany. This can also be an earlier A1 certificate.
Different criminal law meaning of the posting certificates
The basic prerequisite for a contribution offense, as is § 266a StGB, are due employee contributions that are owed on the basis of the material social security relationship (social-law-ancillary design).
Accordingly, in the case of cross-border employment, only the employer can meet the requirements of Section 266a (1) StGB if there is no case of posting under SGB IV or posting under international and supranational law, since then the German social security regulations are not applicable and therefore the domestic social security obligation is not applicable.
The question here is which binding effects benefit the posting certificates. The certificates confirm that the posted employee is subject to the social security law of the posting state and is therefore not subject to social security in Germany.
A 1 certificate (formerly: E-101)
With the posting certificate A1 it is documented for an individual employee which law of which state is applicable to him during his activity. The fundamental court decision on the absolute binding effect of posting certificates (today: A 1, previously: E101) comes from the European Court of Justice: In a judgment of January 26, 2006 (C-2/05 - "Herbosch Kiere"), the ECJ ruled that one should be issued once Posting certificate is to be recognized by all member states and their authorities as well as courts as correct in terms of content. According to the decision, the binding effect also extends to the facts on which the posting is based, e.g. the existence of an employment relationship with the posting company.
As a result, nothing else applies after the judgment of the BGH of October 24, 2006 (1 StR 44/06). The BGH assigns a binding effect to the E-101 certificate for all German bodies, including the criminal courts. The binding effect continues until the certificate is withdrawn or declared invalid by the authority of the issuing Member State, i.e. also in cases of abuse, such as B. Obtaining the certificate through incorrect information. However, with its judgment of February 6, 2018, the ECJ allowed an exception under strict conditions in case C-359/16: Insofar as evidence has to be collected in national criminal proceedings as to whether a posting certificate E 101 or A1 was fraudulently obtained and the If the issuing authority appointed to review refuses or delays such a review, the national court may disregard these certificates if, on the basis of the evidence referred to above and taking into account the guarantees to be given to those persons under the right to a fair trial, it determines that there is such a fraud.
The E-101 certificates must therefore be viewed as binding, “and not just 'as a rule' or merely 'declaratory', but almost without exception and constitutive”.
As a result, valid E-101 certificates are not punishable under Section 266a (1) StGB because German social security law is not applicable through such certificates and the dispensation from the German social security obligation is thus established as binding. Prosecution is also prevented in connection with declarations to the authorities of the sending state in order to obtain the E-101 certificates.
The judgment also applies to the new A 1 certificate.
However, if there are any doubts as to its legality, the auditing authorities are free to ask the issuing state to revoke the certificate or to declare it invalid.
Bilateral agreements using the example of the D / H-101 certificates (Hungary)
In the judgment of the BGH of October 24, 2006 (1 StR 44/06) - on the unconditional binding effect of the E-101 certificates - the BGH left open whether the dispensation from the German social insurance obligation was only bindingly determined with the E-101 certificate will or whether the posting certificates based on bilateral social security agreements establish a binding exemption from the German social security obligation and thus exclude criminal liability under Section 266a (1) StGB.
The BGH closed this loophole with its ruling of October 24, 2007 (1 StR 160/07), which deals with the Hungarian D / H-101 certificates based on the intergovernmental agreement between the Federal Republic of Germany and the Republic of Hungary on social security of May 2, 1998 i. V. m. the agreement to implement this agreement goes on the same day. This agreement was in effect until Hungary joined the EU on May 1, 2004.
According to the above-mentioned judgment of the BGH, posting certificates based on bilateral social security agreements do not have such a far-reaching binding effect on the German authorities and courts as the - almost identical - E-101 certificates. The BGH therefore rejects equal treatment of the E-101 certificates and the posting certificates based on bilateral social security agreements under criminal law.
literature
- Decision No. 181 of the EC Administrative Commission of December 13, 2000.
- Decision No. H1 of the EU Administrative Commission of June 12, 2009.
- EU guidelines for posting workers to the EU member states, the EEA and Switzerland
- A. Erlenkämper, W. Fichte: Social law - general legal bases, social laws , procedural law. 6th edition. Cologne, 2007.
- T. Fischer: StGB, comment. 55th edition. Munich, 2008.
- M. Heger: Comment on the BGH judgment of October 24, 2007 (1 StR 160/07). In: Legal journal. (JZ) 2008, pp. 369-372.
- A. Heuser, J. Heidenreich, H. Förster: Posting abroad and employing foreign workers - legal aspects of international employee deployment. 2nd Edition. Munich / Unterschleißheim, 2003.
- A. Ignor, S. Rixen: European law limits of § 266a paragraph 1 StGB. In: Journal for Commercial and Tax Criminal Law. (wistra) 2001, pp. 201-204.
- A. Ignor, S. Rixen (Ed.): Handbook of Labor Criminal Law - Personnel responsibility as a criminal liability risk. 2nd Edition. Stuttgart, 2008.
- R. Mauer (Ed.): Personnel deployment abroad - personnel management, labor law, social security law, tax law. 2nd Edition. Munich, 2013.
- C. Müller-Gugenberger, K. Bieneck (Hrsg.): Commercial criminal law - manual of commercial and regulatory offense law. 4th edition. Cologne, 2006.
- S. Rittweger: Posting Certificate E-101: Legal opportunities for optimization when working abroad and employing foreigners. In: Lawyer in Social Law. (ASR) 2008, pp. 13-23.
- M. Rübenstrahl: Comment on the BGH judgment of October 24, 2007 (1 StR 160/07). In: New legal weekly. (NJW) 2008, pp. 598-599.
- R. Schlegel: Scope of the binding effect of an agreement-based posting certificate in criminal proceedings for withholding contributions. In: juris PraxisReport Sozialrecht. 5/2008 note 6
- A. Schönke, H. Schröder: StGB, commentary. 27th edition. Munich, 2006.
- U. Schulz: Comment on the BGH judgment of October 24, 2006 (1 StR 44/06). In: New legal weekly. (NJW) 2007, p. 237.
Legal bases
- Basic regulation: Regulation (EC) No. 883/04
- Implementing regulation: Regulation (EC) No. 987/09
- Amendment regulation of the above-mentioned regulations: Regulation (EU) No. 465/2012
- Regulation to extend the application of social security to certain third-country nationals : Regulation (EU) No. 1231/2010
Court judgments
- BGH judgment of October 24, 2006 (1 StR 44/06)
- BGH judgment of October 24, 2007 (1 StR 160/07)
- ECJ judgment of March 30, 2000 (C-178/97 "Banks")
- ECJ judgment of January 26, 2006 (C-2/05 "Herbosch Kiere")
Individual evidence
- ^ Stefan Muckel, Markus Ogorek: Social law. 4th edition. C. H. Beck. Munich. 2011, ISBN 978-3-406-62637-1 . Section 19 marginal no. 1-3.
- ↑ Pananis, in: Ignor / Rixen (Ed.): Handbuch Arbeitsstrafrecht. § 6 Rn. 23
- ↑ cf. u. a. on the concept of the employee and the scope of application: Rittweger, in: ASR 2008, 14 ff u. Fichte, in: Sozialrecht, Chap. 27 marginal number 2 and 13 ff
- ↑ Ignor / Rixen, wistra 2001, 202 f
- ↑ German pension insurance: Working in other EU countries: don't forget the A1 certificate! Retrieved March 14, 2019 .
- ↑ in detail: Heuser / Heidenreich / Förster, Abroad Posting and Employment of Foreign Workers, pp. 275 ff i. V. m. 105 ff
- ↑ Fischer, StGB, § 266a, Rn. 9a
- ↑ on the term employer (special offense): Lenckner / Perron, in: Schönke / Schröder, StGB, §266a Rn. 11
- ↑ Schulz, NJW 2007, 237; Fischer, StGB, § 266a, Rn. 9a
- ↑ for this: Heger, JZ 2008, 369 ff; Schlegel, jurisPR-SozR 5/2008 note 6; on the other hand: Rübenstrahl, NJW 2008, 598 f
