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A researcher from abroad is invited to an interview at a university or research institute in Germany. Is he or she entitled to have all the travel costs incurred reimbursed by his/her potential employer? What regulations apply?
If the candidate is being interviewed for an employment position under private law, the employer is, according to § 670 of the German Civil Code (BGB), generally required to pay the applicant's travel expenses at a standard rate. However, this right is not mandatory. This means that the employer can exclude a claim for reimbursement by specifically informing the candidate in advance that costs will not be covered.
If the candidate is being interviewed for a public service position, the matter is subject to the legislation on travel expenses passed by the federal governement or the individual federal state. In this case, the candidate is only eligible to declare an interview as an official journey if he or she is already a public servant ("Beamter") and has been called for an interview.
In other cases, i.e. if the candidate is not as yet a public servant, expenses for travel to interviews for a public service position may be reimbursed in line with the respective relevant regulations, directives and enactments. These may differ considerably: they may not provide for any reimbursement at all or only for reimbursement of travel costs and not accommodation or a daily allowance. In some cases, travel from abroad is excluded from reimbursement or only half the costs are paid. There are also regulations which allow the respective faculty to reimburse travel expenses at their own discretion. For example, reimbursement can be charged to the faculty budget if it is likely that a candidate will be included on an interview shortlist.
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Question from an experienced ITN (Initial Training Network) researcher, who, three months after completing his assignment, was asked to pay back a sum of money that had apparently been miscalculated by his German employer, but had been laid down in his contract. The salary components for ITN fellows are precisely specified by relevant EU Directives and must be paid to the fellow in the full amount. According to the EU Directives, it is possible to increase this salary, but only from the institution's own funds, not from ITN project funds. According to the EU, employment contracts are subject to the labour legislation, tax code etc. in effect in each country. What can be done in this case?
In the event of a possible salary overpayments to the employee, the legal situation is as follows:
♦ The first decisive factor is the amount agreed upon by the employer and the employee. If the employer made an error by indicating a higher salary in the employment contract, this error can only be corrected within a few days of being discovered by disputing this mistake vis-à-vis the employee. If the mistake is not disputed, the salary laid down in the contract becomes a permanently binding part of the contract and can only be corrected by terminating the contract with the option of re-employment under altered conditions.
♦ The employer is in a better position if the employment contract mentions external references on which it is based, such as EU Directives, specific sponsorship programmes or a labour agreement. If the salary indicated in the employment contract differs from the external regulations that are referenced in the contract, the employer can correct this inconsistency by promptly making a rescission statement.
♦ If the overpayment has occurred with no contractual basis (for example: the net salary per contract is 2,800 euro, but the employer accidentally pays 3,800 euro), the employer can demand repayment of the amount overpaid even after a longer period of time. The employee can, however, object that s/he has meanwhile spent the amount overpaid on necessary living expenses, if this is factually true. If the money is still available, however, the employee must repay it.
If the employment contract or a labour agreement (such as TVöD) referenced in the contract contains a disclaimer, this disclaimer is valid even to the detriment of the employer. The employer must therefore declare that an overpayment has been made within the agreed cut-off period.
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A researcher is a dual citizen and has the citizenship of both an EU country and a third country. The researcher currently resides in the third country and has been offered two year employment contract at a German university. Is the university allowed to treat the researcher only as an EU citizen or does the researcher’s dual citizenship need to be taken into account in some way? What influence does the researcher’s dual citizenship have on social security matters in Germany in this case?
This question needs to be viewed from three legal perspectives, namely regarding residence law, employment law and social security regulations.
1. Residence Law
The researcher’s dual citizenship as an EU citizen does not create any special concern with regard to residence law. Every EU citizen enjoys the right to freedom of movement within the EU, no matter what other citizenships they may have. According to section 2, paragraph 2, clause 1 of the EU Freedom of Movement Law (EU-Freizügigkeitsgesetz), citizens of the European Union have the right to freedom of movement when they wish to spend time in Germany as an employee. The citizenship of an additional third country does not impact the citizenship of the EU country and its inherent rights to freedom of movement in any way.
2. Employment Law
There is also nothing of note to observe with regards to employment law. German employment law follows the territoriality principle. This means that an employment relationship in Germany is subject to German employment law, no matter the citizenship of the employee. As article 8 paragraph 2 of the Rome I Regulation (EC) (No 593/2008 of the European Parliament and of the Council) established, employment relationships are subject to the state where the employee usually carries out their work in cases where no divergent choice of law has been made. Regarding temporary contracts, this means specifically that the Law Regulating Fixed-Term Employment Contracts in Science and Research (Wissenschaftszeitvertragsgesetz) and the Part-Time Work and Fixed-Term Employment Contract Law (Teilzeit- und Befristungsgesetz) must be observed. According to section 14 paragraph 2 clause 1 of the Part-Time Work and Fixed-Term Employment Contract Law, temporary employment is allowed for up to two years without a specific reason being given, and according to the Law Regulating Fixed-Term Employment Contracts in Science and Research up to a total of six years. In this case, this time period has not been surpassed. Furthermore, research activity itself most likely would be perceived as a legitimate reason in the sense of the Part-Time Work and Fixed-Term Employment Contract Law.
3. Social Security Regulations
With respect to social security regulations, several aspects must be differentiated. Fundamentally, according to section 3 clause 1 of the Social Security Statute Book IV (SGB IV), the territoriality principle would also be applicable in Germany. This means that an employment relationship within the Federal Republic of Germany is subject to Germany’s social security requirements, no matter the nationality of the employee. Put more simply: a person who enters into an employment relationship in Germany is also subject to its social security regulations.
This is also the case when an EU citizen who has previously been in the social security system of another EU member state enters into an employment relationship in Germany. The additional citizenship of a third country is irrelevant here. According to article 11, paragraph 1, clause 3 lit. a. of regulation (EC) No. 883/2004, social security is established in the member state where employment activities are carried out. Article 6 of this regulation specifies that possible times insured must be taken into account. An exemption is possible according to article 16 upon request, but only in exceptional cases. The prerequisites for the application of this exception to the coordination of social security systems is that the person was already part of a social security system of a member state, though. The person in question last had their residence and place of employment in a third country, meaning that they were not socially insured in an EU member state and therefore the aforementioned regulations are not applicable, but instead sections 3-6 of the Social Security Statute Book IV (SGB IV).
Regarding the third country, the answer to the question is also dependent on whether the country in question has agreed a bilateral agreement in the form of a so-called “exemption agreement” with Germany. A list of third countries that have signed such agreements with the Federal Republic of Germany can be found on the website of the German Liason Office for Health Insurance- Abroad (Deutsche Verbindungsstelle Kraneknversicherung- Ausland- in German). Should such an agreement exist, an application can be made to the regulatory office in the third country to be exempted from the insurance requirements in Germany in order to continue to be part of the social security system in the home country. The relevant contact details can be found here(in German).
For the case described here, this means the following: an employee with dual nationality that lived in the relevant third country before and was employed in a manner requiring social security contributions could submit an application to be exempted if such an exemption agreement exists. Should such an agreement not exist, the employee is required to pay social security in Germany. Should the employment relationship not exceed the five year waiting period prerequisite to obtaining a right of claim to a German pension, the employee would have a reimbursement claim according to section 210, paragraph 1a of the Social Security Statute Book IV (SGB IV) as long as the employee returns to the third country. The reimbursement can only be received upon request and first after 24 months have passed following the end of employment. Forms and further information can be found on the German Federal Pension Insurance website.
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