Legal Responsibility When Using Eastern European Subcontractors: An Analysis from the Perspective of the Client.

In considering recent legal issues surrounding the use of an Eastern European subcontractor, which in turn employs Ukrainian workers, by a client in the construction industry, several key legal aspects come to the forefront:

1. Risk of a concealed employment relationship: It is of utmost importance for the client not to enter into direct employment relationships with the Ukrainian workers. The Polish subcontractor should have sole authority and create the work exclusively for the client. If the client takes on supervisory functions or provides tools, this could be construed as a concealed employment relationship or employee leasing, which could lead to serious tax, social security, employment, and criminal law consequences. This issue is compounded by the fact that individuals in Germany are working through a foreign company.
2. Supervisory and liability obligations: According to § 28e paragraph 3a, b, f SGB IV, a main contractor who commissions another contractor to perform construction services is liable for the latter’s payment obligations like a self-guaranteeing guarantor. This liability can only be avoided if the main contractor can prove that he had no fault in assuming that the subcontractor would meet its payment obligations, for example by prequalification or obtaining clearance certificates. The main contractor must prove throughout the contract duration that its subcontractors fulfill all notification and payment obligations for accident and social insurance contributions. Non-compliance exposes the main contractor to liability.
3. Liability for compliance with minimum wage according to § 14 AEntG: According to the Employee Posting Act (AEntG), a client who commissions another contractor for work or services is also liable for compliance with the minimum wage. This means that the client may be held liable for the minimum wage payments of the Eastern European subcontractor if the latter does not meet the legal minimum wage requirements.
4. Possible violations of residence law according to § 404 SGB III: This paragraph addresses administrative offenses in connection with the commissioning of companies that could violate residence laws. The Eastern European subcontractor must ensure that, for example, the employment of (Ukrainian) citizens who work in Germany according to § 24 AufenthG is legal and meets all requirements of the Employee Posting Act. Ukrainian citizens may work as temporary workers in Germany under certain conditions.

There is no direct legal obligation for the client to check the work permit of employees of a subcontractor. The legality of the posting by the Eastern European subcontractor could be clarified by an inquiry with the customs office or the Federal Employment Agency.

Recommendations for precautionary measures: To minimize risks, the client could request confirmation from the Eastern European contracting company that all legal requirements for the use of the Ukrainian workforce have been checked and met. If this confirmation is missing, the client could be considered in bad faith.

It is also advisable for the client to ensure that all posted employees carry the required documents according to the Employee Posting Act at all times. This allows for quick clarification during inspections and shows that the workers are not directly employed by the client. These measures serve to protect the client from potential legal risks and consequences.