Work permits for the EU citizens
2005-12-13
Polish regulations
The question of foreigners’ work in Poland is regulated on the base of the bill enacted on 20th of April 2004, concerning the promotion of employment and labour market institutions.
A foreigner is allowed to work on the territory of the Republic of Poland only if one possesses a work permit, issued by the Wojewoda [1] appropriate for the location of employer. This requirement does not, concern citizens of the European Union Member States and citizens of those states the EU signed an agreements on the free movement of people with. However, there is a possibility to use the rule of reciprocity up to employment of equivalent means or restrictions, which are the subject of Appendix XII, point 2, paragraph 11 of the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (article 87 of the said bill).
On the base of rule of the free movement of people within the EU (article 39 of the Treaty establishing the European Community), citizens of the EU do not need a permit to start working in Poland. However, there is an exception, on the base of restrictions, provided in the Accession Treaty concerning Polish citizens who would like to work in the EU countries On that base Poland is granted a right to use equivalent means and to establish limitations for the citizens of the EU and the EEA [2] countries, who would like to work in Poland (so called transitional periods).
Poland took advantage of this possibility by introducing the restraints of foreigners’ work – citizens of the EU Member States; on a legal ground of Ordinance of the Minister of Economy and Labour dated 26th May 2004 concerning the limitations in accession to work of foreigners in the territory of the Republic of Poland (published in Dz. U dated 31st May 2004)[3], issued on the base of delegacy of legislative power, from the mentioned bill concerning the promotion of employment (the Ordinance is called onwards the Transitional Ordinance).
Mentioned restraints concern the citizens of Austria, Belgium, Denmark, Finland, France, Greece, Spain, Iceland, Liechtenstein, Luxembourg, Netherlands, Germany, Norway, Portugal and Italy, but yet the citizens of Denmark, Netherlands, Norway and Italy are given work permits without following rules concerning the situation on the local labour market neither criteria of giving promises and permissions for work for foreigners. The restraints do not concerns citizens of Ireland, Sweden and Great Britain, who are allowed to work in Poland without having a work permit.
This is of a great importance that all restrictions imposed by Poland need to exactly fit the range of allowed means described in the Treaty of Accession [4], as it is an exception (though temporary) from the fundamental rule of the free movement of people described in the EC Treaty[5].
Decisions of the Treaty of Accession (TA)
Appendix XII of the TA describes possibilities of applying transitional periods for the free movement of workers and freedom to provide services. The Appendix modifies in certain details (for the certain period of time) application of the article 39 and 49 paragraph 1 of the EC Treaty.
Article 39 concerns the free movement of workers, article 49 paragraph 1 regards the question of posting workers to provide services.
It is worth pointing that transitional periods do not apply to foreigners, who were working legally in a territory of a Member State in the date of Accession and who have been allowed to work there, for the continuous period of minimum 12 months. Although this regulation concerns the Poles working in the former 15 EU states, Poland may apply only the equivalent means, not the excessive ones. In our opinion, the EU citizens, who had legally held their jobs on the 1st May 2004 in Poland and who had been let to work for at least 12 months do not need permits, even if the Transitional Ordinance does not consider such case. This point of view has been confirmed by the Ministry of Labour in the response addressed to our Euro Info Center.
In accordance with the Transitional Ordinance, a permit for work may be given on the base of the Ordinance of the Minister of Labour and Social Policy dated 19th December 2001 concerning detailed rules and modes for giving promises and permits for work for foreigners (called next the Detailed Ordinance, Dz. U. 2001 no. 153 position 1766) or on the base of the Ordinance of the Ministry of Labour and Social Policy dated 19th December 2001 concerning the instances where promises and permits for work for foreigners are issued by Wojewoda, regardless the situation on the local labour market and criteria of issuing promises and permits for work for foreigners (called next the Simplified Ordinance. Dz. U. 2001 no. 153 position 1767) or on the base of regulations concerning the details rules and conditions of foreigners’ work in the field of art services (which are not a subject of the article).
The Detailed Ordinance
The Detailed Ordinance includes the form of the employer application for work permit that should be addressed to the proper Wojewoda (proper for enterprise location) and describes the procedure and reasons of application’s rejection.
Wojewoda is obliged to consult Starosta[6] about the condition of the local labour market. The situation when an employer offered polish citizens or refugees the post is also taken under consideration (however, posting a job offer only at the local employment job office is not sufficient).
Wojewoda rejects application in the following cases:
a) an employer denied to employ unemployed persons that were directed to the post by Starosta;
b) a foreigner’s qualifications are not suitable for the work he would do;
c) a foreigner has been sentenced by the final judgment for imprisonment
d) during the past year, a foreigner has violated the employment laws;
e) a foreigner is going to be a member of the management board of the organisation that does not make a profit.
The Simplified Ordinance
The Simplified Ordinance regards situations when work permits are given regardless the local labour market conditions and regardless criteria of issuing promises and permits.
Possibility of issuing a permit in this mode concerns following persons:
1) citizens of the EU who are key personnel in the meaning of Article 52 of the Europe Agreement (it is worth to point out that the Agreement itself expired in the very moment of the Polish accession to the EU). The key personnel, as defined in the Agreement are:
a) senior employees of an organization who primarily direct the management of the organization, receiving general supervision or direction principally from the board of directors or shareholders of the business, including:
- directing the organization or a department or sub-division of the organization,
- supervising and controlling the work of other supervisory, professional or managerial employees,
- having the authority personally to engage and dismiss or recommend engaging, dismissing or other personnel actions;
b) persons employed by an organization who possess high or uncommon:
- qualifications referring to a type of work or trade requiring specific technical knowledge,
- knowledge essential to the organization’s service, research equipment, techniques or management. These may include, but are not limited to, members of accredited professions. Each such employee must have been employed by the organization concerned for at least one year preceding the detachment by the organization.
2) foreigners – Corps Diplomatic family members;
3) foreigners allowed to represent the foreign enterprise in its departments or representations placed in the territory of Republic of Poland.
The mode of issuing permits is the same as given in the Detailed Ordinance.
The Discharging Ordinance
The Transitional Ordinance does not refer to the Ordinance of the Minister of Labour and Social Policy dated 19th December 2001 concerning the situations, where foreigners do not need a work permit. (Dz. U. 2001 no. 153 position 1765, called onwards the Discharging Ordinance). It is then doubtful that Discharging Ordinance applies to the citizens of the EU. –However, the TA allows only to keep current limitations in force and not to add any new; from this perspective the exclusion of EU citizens would be in fact a new limitation in the meaning of law, therefore in our opinion the Discharging Ordinance needs to be also applied to those EU citizens that the Transitional Ordinance deals with (this point of view has been confirmed by the Ministry of Labour).
The Discharging Ordinance defines that a foreigner does not need a permit in the following cases:
1. Leading trainings, taking part in professional education courses, being an advisor, supervisor or any other work that require special qualifications and skills in programs with the EU help or any other international help agenda, also these financed through the loans taken by the Republic of Poland.
2. Foreign language teachers or teachers that do their lessons in foreign language and who work in accordance to international agreements and deals, executed by the Minister of Education.
3. Foreigners who work in accordance with international deals and agreements of which Poland is a part, that allow to work without work permits.
4. Foreigners who perform, in teams or individually, art services that last for maximum 30 days. This includes actors, dancers, players, conductors, singers and mimes.
5. Full-time students who take their classes in Poland for maximum 3 months during the holiday period.
6. Foreigners, while keeping their living place abroad, have been posted to work in Poland by a foreign employer for the period not longer than 3 months to:
a. assembly, maintain or repair delivered complete technologically devices, constructions or machines if a foreign employer is the manufacturer;
b. test and accept devices, machines or other goods made by polish enterprise for a foreign company;
c. train staff of a polish employer, who is a receiver of devices, constructions or machines referred in the point a), for the use of these;
d. assemble and disassemble trading-posts during fairs, as well as supervising them if an exhibitor is a foreign employer who delegated foreigners to do this work.
7. Foreigners who live abroad, give a casual lecture or perform presentations of important value in the field of art or since.
8. Foreigners that are members of the management board of a legal person that conducts business in Poland, if their stay in Poland do not exceed 30 days a year and foreigners have a visa allowing for work (the allowed period of time does not depend on number of legal persons that a person in question manages).
9. foreigners – teachers of foreign languages who work in kindergartens, schools and Ochotnicze Hufce Pracy[7], if the language they teach is their mother tongue.
Considering point 3, it is recommended to point out that the basic international agreement which should been taken under consideration is the EC Treaty and the TA.
The TA has allowed Poland to apply a transitional period for the free movement of workers for the citizens of the former EU (15 Member States). For the citizens of the new 9 Member States (the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Slovenia, Slovakia, Cyprus and Malta) such restrictions cannot be introduced, unless “a serious distortion is present or might occur in the job market that will end in the threat of living standard or employment level in the specific region or profession”. However, citizens of Cyprus and Malta are excluded even from such restrictions. The decision of introducing the restrictions is no longer in the gesture of Poland but of the European Commission on the Poland’s request.
As for the moment, citizens of the new Member States do not need work permits in Poland.
Providing services
Workers posted to Poland to provide services on the basis of the 96/71/EC Directive do not need to have a work permit with the exception of citizens of Germany and Austria.
Citizens of Germany and Austria posted to work in Poland need to apply for a work permit if they are to provide services in following sectors:
(in case of Germany): construction, including related branches, industrial, interior decorators;
(in case of Austria): Horticultural service activities, cutting, shaping and finishing of stone, manufacture of metal structures and parts of structures, construction, including related branches, security activities, industrial cleaning, home nursing, social work and activities without accommodations.
The special case of Switzerland
Switzerland is not a member of the EU nor did it sign the European Economy Area Agreement. However, Switzerland has signed an agreement with the EU [Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, Official Journal L 114 , 30/04/2002] on free movement of workers. Poland has not automatically become a part of this agreement on the day of accession and now is negotiating conditions which will apply to Polish and Swiss workers.
Freedom of establishment
The possibility to apply transitional periods for work does not have any impact on the freedom of establishment described in the Article 43 of the EC Treaty.
Article 43 of the EC Treaty states that: “Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited(…)
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms(…), under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.”
Article 43 of the EC Treaty refers to the self-employed persons as well as to persons who manage enterprises (management board members).
The legal position of the self-employed persons is explained in details in the Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services. The Directive refers to persons who move to another Member State in order to deliver service there or set up a new business.
The regulation, however, does not apply to persons who would like to establish or manage enterprises i.e. limited liability partnership.
In the judgment in the case Reyners vs. the Kingdom of Belgium (C-2/74) the European Court of Justice stated that Article 43 (no. 52 in the old numeration) could be applied directly without a need for further regulations. It is to state then, that the Article 43 of the EC Treaty is an independent base for the stay of foreigners – EU citizens in Poland and for performing their managing functions. In this case, there is no legal basis to require a work permit. Regulations of the Simplified Ordinance (on the key personnel) do also have no use here, so there is a need to call directly the regulations of the EC Treaty and the TA as well as the Discharging Ordinance.
It is worth saying that being in an employment relation is different from fulfilling managing functions. In accordance to the Polish Labour Code’s article 22:
Paragraph 1: “By the establishment of an employment relationship the employee shall oblige himself/herself to perform specified work for the employer on request and the employer shall oblige himself/herself to employ the employee for remuneration”
Paragraph 1’: “Employment on the conditions specified in paragraph 1 shall be considered employment within the scope of an employment relationship regardless of the name of the contract made between the parties”
Being a member of the managing board in the trading partnership and possessing the 100% of its shares at the same time cannot be acknowledged as an employment relation as there is no relation of directorate and subordination, which is characteristic for the relation: subordinate – manager.
It is to add here that following groups have to have obligatory social insurance in Poland :
· workers
· persons who perform their work on the terms of agency contract, commission or other contract for delivering services, to which in accordance with the Civil Code the regulations concerning delivery of the services are in force.
· Persons who perform non-agricultural activity (self-employed persons). This includes: persons who do the establishment activity; who work in free occupations; partners in the one-man limited liability partnership; partners in ordinary, limited and professional partnership as well as artists and authors.
The situation complicates in the case when a partner who does not own 100% of shares is also a company director. Each such case should be analysed separately, especially for the legality of the work agreement between a company and a shareholder.
Recapitulation
Summarizing all the above, it is to say that Polish regulations concerning work permits for foreigners are not consistent, and to certain extent even incompatible, with the European law. What is of a considerable importance, Polish regulations do not recognise a situation, where a foreigner who has been legally allowed to work at the moment of the accession is freed from the obligation of acquiring a work permit, although such a case is described in the TA.
The Polish regulations restrict also the freedom of establishment founded in the EC Treaty by requiring members of managing boards to apply for a permit, even when the TA does not enable such restriction.
Jacek Czabański
31.08.2004
EIC PL-405 Warszawa
euroinfo@cofund.org.pl
(English translation by Michał Soszyński)
Practical Information
[from the Mazovian Voivodship Office http://www.wup.mazowsze.pl/]
Who may apply for a work permit for a foreigner?
Only the prospective employer may apply for a work permit (prospect employees are not allowed to apply). The procedure may be taken by a legal counsellor or representative acting on behalf of the employer.
Where applications should be submitted?
Applications for a work permit in the Mazovian voivodship should be submitted to Wojewódzki Urząd Pracy (the Voivodship Labour Office) in Warsaw or its branches.
- in Warszawa, 16 Młynarska Str. (Monday-Thursday 9.00-15.00)
- in Ciechanów, 7 17 Stycznia Str. room 403 (Monday-Friday 8.00-16.00)
- in Ostrołęka, 17 Poznańska Str. room 23 (Monday-Friday 8.00-16.00)
- in Płock, 56 Chopina Str. room 11 (Monday-Friday 8.00-16.00)
- in Radom, 2 Mokra Str. (Monday-Friday 12.00-14.30)
- in Siedlce, 19/21 Pułaskiego Str. (Monday-Friday 8.00-16.00)
What documents should be submitted?
The prospective employer submits an application and following annexess:
- confirmation of payment
- an excerpt from the National Court Register or an excerpt from the Business Activity Register at local communities (not older than 3 months); in case of natural persons wishing to employ a foreigner, a identity card and NIP (tax identification number) should by enclosed ;
- a document confirming a right to the premises at which work will be provided (for example a lease contract);
- REGON (statistical number);
- NIP (tax identification number);
- a copy of the foreigner’s passport (without blank pages);
- if a foreigner has a visa type D08, a Voivode decision on the provisional residence permit; for the EU citizens, a residence card;
- documents which confirm a professional qualifications of a foreigner (translated by a certified translator); documents confirming recognition of the said qualifications;
- a statement about number of employees;
- documents which confirm that the employer tried to employ Polish citizens or refugees for the post;
- a confirmation from the National Criminal Register that a foreigner has not been punished in Poland;
- a description of an employee duties (if not included in the application);
- power of attorney – if the employer is represented by a counsellor.
In case of posting workers
- a letter of delegation (translated by a certified translator)
- a letter of the Polish company that points the party who pays the costs of posting.
All copies should be confirmed by an applicant and originals should be presented.
Application forms are available here:
http://www.wup.mazowsze.pl/cudzoziemcy/cudzoziemcy.zip
How much does a work permit cost?
For issuing a permit, the employer is charged an amount that is the equivalent of the minimal wage. At the moment it is 824,00 zł. For prolongation, the charge is 50% of that amount.
Charges should be transferred into the following bank account:
Ministerstwo Gospodarki, Pracy i Polityki Społecznej
pl. Trzech Krzyży 3/5
00-513 Warszawa
NBP O/O WARSZAWA nr 42 1010 1010 0069 5618 9230 0000
A payment confirmation should include following details:
- name and address of the paying person;
- title of the payment (issuing a work permit or prolongation of a work permit);
- name and surname of a foreigner for whom a permit will be given.
How long does it take?
A decision has to be taken without undue delay and the procedure should last not longer than 1 month.
[1] Wojewoda (Voivode): a title of the head of the local government representation. Poland is divided into 16 regions called "województwa” (voivodeships).
[2] EEA – European Economic Area: Iceland, Lichtenstein, Norway + the EU Member States.
[3] Dz.U – Dziennik Ustaw: Official Journal of Bills of the Republic of Poland.
[4] TA: Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia.
[5] Treaty establishing the European Community.
[6] Starosta is a head of the local authorities at the level of powiat (larger than gmina – community, smaller than a województwo - voivodship)
[7] Ochotnicze Hufce Pracy – OHP is the organisation that gathers unqualified and young people to work particularly in the agriculture and forestry.
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