Pursuant to Article 16 of the Minimum Wage Act (Mindestlohngesetz - MiLoG) in certain industries such as the transport sector, both employers domiciled outside Germany and users of temporary workers supplied by an agency established abroad are under the obligation, prior to any supply of labour or services, to give notification in writing to the customs administration (General Directorate of Customs, Financial control of undeclared work (FKS), Directorate VII). This notification must state, among other details, information about all workers they deploy in Germany, and about the start and expected end of their posting.
In derogation of this notification requirement, the Federal Ministry of Finance has largely simplified its procedures and brought them much closer to practical realities where exclusively mobile activities (including transport operations, among other activities) are concerned. These more simplified rules are laid down in the Ministry’s Ordinance on Minimum Wage Reporting Obligations (Mindestlohnmeldeverordnung - MiLoMeldV).
a) Operational scheduling
In the context of exclusively mobile activities it is now sufficient to provide customs with a simple operational schedule. On these schedules, foreign-domiciled employers, and the users of labour, shall specify all their known assignments planned for the next six months. Where it is not possible to plan ahead for that long, schedules spanning a shorter period may also be accepted.
The information to be given in the operational schedules can be restricted to:
- details about the start and expected end of the scheduled (period of) deployment,
- the surnames, first names, and dates of birth of all workers the employer expects to deploy in Germany during the notified period of scheduling,
- the scheduled period of the workers’ deployment in Germany, and the number of individual postings/deployments of each worker within this period of scheduling (submitted as Annex to the Operational Schedule),
- the address where the mandatory documentation pursuant to Article 17 MiLoG and, or Article 19 of the Posted Workers Act (Arbeitnehmer-Entsendegesetz - AEntG) will be kept available for inspection (in particular, labour contracts, time sheets, pay slips, evidence of wages paid).
b) Notifications of change or derogation from the original scheduling are not necessary where the operational scheduling complies with all relevant requirements.
c) Option to keep the required documents available in the country of origin, not in Germany
Foreign-domiciled employers are furthermore provided with the option to keep the relevant documentation in their own country, even though the Minimum Wage Act (MiLoG) provides that the documents shall be kept available for inspection in Germany and in German language, for the whole duration of the work or services.
This will relieve employers from another burden: they must have the documents translated only if and when the customs authorities demand them.
Prerequisite: In order to benefit from this relief, the employer must provide a signed assurance together with its operational schedule, declaring that upon request they will make the documentation kept abroad (at their company headquarters, for example) available in Germany and translated into German.
More information about the forms for operational schedules
Provided that an operational schedule complying with all relevant requirements has been submitted, there is no need to notify customs in the event of changes or derogations from the original schedule. Compliant scheduling implies, among other prerequisites, that the notification shall cover only that period of time for which specific jobs or assignments are predictable and can be planned with relative certainty. A generalised notification indicating "several journeys over a period of six months" would therefore not be compliant.
Example of a compliant notification:
An employer gives notification for the period from 1 January to 31 March because he has secured a number of assignments until that date. He states on the notification form that five workers are performing work for him in Germany during that period. In February, the employer receives an additional order for which he intends to deploy a worker not originally notified to customs. In this case, a notification of change would not be necessary.
For notifications in the context of exclusively mobile activities, the "Employer's Operational Scheduling (mobile activity)" and/or "User's Operational Scheduling (mobile activity)" forms that can be accessed through the Minimum Wage Notification Portal (www.meldeportal-mindestlohn.de) must be used. The operational scheduling forms must be completed so as to show the starts and the expected ends of each employee's period of deployment as well as the number of deployments (as can reasonably be expected if orders remain stable).
The driver is not required to stay in Germany throughout the entire period.
It is not required, in principle, to designate an agent or authorised representative in Germany.
The notification need only indicate the location (name or company name, address) where the relevant documents are being kept available for inspection. This may be at a domestic location or at an address abroad.
Where an employer keeps such records out of Germany it should be noted, however, that when submitting their operational scheduling they must assure that the documents will be made available for inspection upon request by the customs.
If the Minimum Wage Notification Portal cannot be accessed due to reasons for which Customs are responsible (such as periodic maintenance) you may submit your notification later, as soon as the system is online again. In such circumstance, you will not be held responsible for the delay in submitting your notification.
The notification procedure has been designed as a mere reporting tool. It is not linked to an approval process, which is why you need not wait for authorisation. Whenever you submit a notification via the Minimum Wage Notification Portal, at the time of completing the final notification step the portal will automatically generate a confirmation of receipt which contains a notification ID. If that ID is displayed you can be certain that the General Customs Directorship has received your notification. You can save the confirmation of receipt to your hard drive and/or print it for later reference. If the notification is sent to customs by ordinary mail, however, a confirmation of receipt will not be issued.
