The article deals with the question of posting workers who are not citizens of the Republic of Croatia, neither citizens of any of the EU Member States, to work in the Federal Republic of Germany. These are so-called third-country workers who, under certain conditions, may work in the territory of the Republic of Croatia, and may also be posted from Croatia to work in another EU Member State, specifically Germany.
The employment of third-country nationals in the Republic of Croatia is regulated by residence and work permits (for work longer than 90 days) and certificates of employment registration (for work up to 90 days per year for certain categories). A foreigner, a third-country citizen in the Republic of Croatia, may work on the basis of a residence permit and work permit or a certificate of employment registration, unless otherwise stipulated by the Law on foreigners (NN 130/11, 74/13, 67/17, 46/18). Residence and work permits may be issued on an annual and extra-annual quota. Reports on the status of utilization of the annual residence and work permit quota in 2020 by activities and occupations issued in accordance with the Decision of the Government of the Republic of Croatia can be found on the website of the Ministry of the Interior of the Republic of Croatia.
Regarding the posting of workers from third countries to work abroad, in accordance with Directive 96/71 / EC, ‘posted worker’ means a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works. In order for an undertaking to post workers to a Member State of the European Union, it must be an undertaking established in one of the EU Member States, and the mentioned Directive applies if the undertaking takes one of the following transnational measures:
posts workers to the territory of a Member State on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in that Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or
posts workers to an establishment or to an undertaking owned by the group in the territory of a Member State, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or
eing a temporary employment undertaking or placement agency, hires out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting.
Considering that these workers are not citizens of the Republic of Croatia, it is first of all necessary for them to be registered for work in the Republic of Croatia according to the legislation of the Republic of Croatia, that is, that they have either a residence permit and a work permit or a certificate of employment registration. Obtaining these documents includes, among other things, the following actions: submission of a signed employment contract between the employer and the worker, a copy of the ID card and proof of completed schooling, pension and health insurance. The issuance of a tax card for the employee is necessary as well as for him to have a current account.Therefore, once third-country citizens have been granted a legal basis for residence and work in the Republic of Croatia, it is possible to post them to work in another Member State, subject to certain conditions. It is also important to pay attention to the employment conditions laid down in Directive 96/71 / EC, which are guaranteed to the worker in the undertaking to which he is being posted.
For posting third country workers to the FR Germany, it is necessary to emphasize the difference between workers who have a permanent or temporary residence in Croatia. The likelihood that a „Vander Elst“ visa will be granted is much higher in the case of workers who have a registered permanent residence. Details on obtaining a temporary residence permit are governed by the Law on foreigners, while permanent residence may be granted to a third-country citizen who, until the day of the application, has a continuous legal residence of five years, including temporary residence.
If all of the requirements are fulfilled, the Embassy of the Republic of Germany in Zagreb can issue the so-called „Vander Elst“ visa, which means that it is not necessary for a worker to request an additional work permit or any other permit (it is important to emphasize that the regulations for this visa do not apply if the worker is posted within an undertaking , that is, a branch of an undertaking located in Germany). This visa is a necessary prerequisite for the stay and therefore also for the work in Germany of a third-country worker who is permited to work in Croatia. It is also important to emphasize that the issuance of this visa is highly dependent on the discretion of the German Embassy.
It should be noted that the establishment of agencies opening solely for the purpose of posting third-country workers to another EU Member State is on the rise and that those agencies in many cases (most often in the construction sector) are sending third-country workers to work without „Vander Elst“ visa. Then there is a great danger that such worker will be deported from the Republic of Germany, which entails numerous unfavourable consequences for the posted worker.
In conclusion, it is emphasized that granting residence and work in the Republic of Croatia to third-country citizens means regulating their employment status in the Republic of Croatia. Each Member State may impose on the non-EU workers who are posted to it, certain special conditions regarding their residence in the territory of each Member State, as Germany did.