The Federal Government’s „Easter Package“ from April 2022 set the course for the expansion of offshore wind energy. The Second Act Amending the Wind Energy at Sea Act deregulated German immigration law for third-country offshore wind workers. The amendments to the Employment Ordinance (BeschV) came into force on 29 July 2022.
- The entry and employment of foreigners in Germany is subject to strict regulation by German immigration law in order to protect the national labour market.
- The Federal Administrative Court ruled on 27 April 2021 that seafarers engaged in offshore activities in the German territorial sea are not subject to the immigration law exceptions for seafarers, but are to be treated as workers on the mainland.
- The legislator has removed these restrictions for offshore wind workers with the new Section 24b of the German Employment Ordinance (“BeschV” – Beschäftigungsverordnung).
The new regulation
Section 24b BeschV
Wind turbines at sea and offshore connection lines
„No consent is required for the granting of a residence permit to foreign nationals employed in the German territorial sea to carry out activities for the construction and repair of offshore wind turbines and offshore connecting cables, including loading and discharging work in port and other activities of other members of the crew of the ships used for this purpose. The exemption from consent is possible for a period of up to 24 months. […]“
1. What consent is referred to?
The employment of foreigners in Germany requires the consent of the Federal Employment Agency, unless the law provides otherwise (Section 39 Residence Act). Section 24b BeschV is such an exempting legal provision. In result, employment with offshore wind activities no longer requires consent.
The formal requirements for entry into the Federal Republic of Germany according to the Residence Act have not been erased. Generally speaking, a visa is required.
2. Is it relevant for EU citizens?
No. EU citizens are foreigners. However, they are already allowed to enter the territory of the Federal Republic of Germany on the basis of the fundamental freedoms under European law and to work there, for example, as offshore wind workers. The details are regulated in the German Act on the General Freedom of Movement of Union Citizens.
3. Does it apply to offshore activities in the German EEZ?
No. Activities of offshore wind workers beyond the 12 nautical mile limit of the German territorial sea have never been subject to any restrictions under immigration law. But the new immigration law applies to performing offshore activities within the German territorial sea for an offshore wind farm located in the German EEZ.
4. Does it apply to self-employed persons?
No. Self-employed offshore wind workers still generally need a residence permit in accordance with Section 21 Residence Act for offshore activities in the German territorial sea.
5. Does it only apply to qualified offshore wind workers?
No. Strictly speaking, offshore wind workers need not have a special or particular qualification as long as they perform offshore activities. Insofar as the explanatory notes by the government refer to „qualified workers“, this is merely done exemplarily.
6. Does it apply to temporary workers from agencies?
The regulation certainly applies to temporary worker from foreign agencies. Whether the exemption also applies if a temporary worker domiciled in a non-EU country is hired by a German agency exclusively to carry out offshore activities in Germany for a customer, is not entirely unclear.
When using foreign agency offshore wind workers in Germany, the reporting obligations under section 17b of the German Temporary Work Act must be observed. If not, fines may be imposed.
7. Does it apply to seafarers?
Yes. Crew members of offshore vessels do no longer need consent for employment to undertake offshore activities.
8. What kind of work may be carried out?
All activities for the construction and repair of offshore wind turbines and offshore connection lines in the German coastal sea. This includes early surveys of the seabed. NOTE: Maintenance services in respect of wind turbines and cables, however, are generally not exempted.
9. Are offshore activities limited to the territorial sea?
No. The exemption also applies to loading and unloading work in the port, i.e. mobilisation and demobilisation onshore. The term „port“ is to be interpreted rather broadly based on the purpose of the regulation. Even project-related offshore activities in inland waters adjacent to the territorial sea should be permitted.
10. For how long may the offshore activities be performed?
At maximum for 24 months. If a longer deployment is planned, the offshore wind worker cannot rely on the exemption. Departure and re-entry for the same project does not restart the 24 months. It is, however, conceivable that an offshore wind worker may re-enter and work without consent for a different project for up to 24 months.
11. What must employers do?
Under German immigration law, employers have to monitor whether the employment of foreigners compliant with its regulation. The visa for entry must legally be applied for by the offshore wind worker himself. Employers can assist here. Even if exempted in the case of offshore activities, employers must provide information in the „Declaration of Employment Relationship“ to the Federal Employment Agency in order to verify this.
12. Are there sanctions for non-compliance?
The sanctions are, in particular:
- The wilful employment of foreigners without a permit for employment may under certain qualifications give rise to criminal liability.
- The negligent or wilful employment of foreigners without a permit for employment may constitute an administrative offence with a substantial fine.
- The commissioning of a contractor who employs a foreigner without the permit for employment (principal’s liability) may likewise constitute an administrative offence by the principal.
- An exclusion from future subsidies and tender procedures.
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