Suddenly smugglers - how entrepreneurs with non-European workers come under the scrutiny of customs and what they can do about it.

The fact that medium-sized businesses are struggling with the ongoing economic crisis has been a recurring theme for years. One term that keeps cropping up is personnel costs . Because entrepreneurs feel abandoned by the government and fear for their survival, relying on cheap labor from abroad is particularly attractive. However, a multitude of regulations must be observed, and violations of these regulations can pose significant risks for those responsible. The accusation of being involved in human trafficking is especially serious.

Example case: Construction company

In a simulated case, an ambitious young man accepts a position as managing director of a construction company. A few months after starting work, he receives a summons from customs on suspicion of a criminal offense under Section 96 of the German Residence Act (AufenthG ) and an administrative offense under Section 404 of the German Social Code, Book III (SGB III). It turns out that two Bosnian workers without residence permits (colloquially "without work permits") were stopped and checked while on their way to one of the company's construction sites. Since the contract dates back to a time before he was hired, the young man is taken aback. He doesn't see himself as having done anything wrong and doesn't know how to deal with the accusations.

The criminal charges

The most serious charge is the human smuggling of foreigners under Section 96 of the Residence Act, which—except in less serious cases—stipulates a minimum prison sentence of six months according to paragraph 1. If the perpetrator acts commercially, paragraph 2 defines this as a felony, leading to prosecution before a lay judge court and significant additional consequences (e.g., professional disqualification) . Section 70 of the German Criminal Code or disqualification from managing director Section 6 Paragraph 2 of the German Limited Liability Companies Act (GmbHG ) can mean this. Commercial activity means that the perpetrator " intends to secure a continuous source of income of some scope and considerable duration through the repeated commission of criminal offenses " (MüKoStGB/Gericke, 4th ed. 2022, German Residence Act (AufenthG) § 96 Rn. 27). If a construction company were to specifically and regularly recruit workers without residence permits for entry and employment, such a case could exist, § 96 Paragraph 2, in conjunction with Paragraph 1 No. 1 a) of the German Residence Act (AufenthG), § 95 Paragraph 1 No. 3 of the German Residence Act (AufenthG). It may be surprising according to general understanding, but in a legal sense, the company would be considered a human trafficker .

Furthermore, one must consider undeclared work and the criminal provision § 11 of the Act to Combat Undeclared Work (SchwarzArbG) , which can apply to six or more foreign nationals employed or commissioned simultaneously. Mere reference to the employer status is insufficient, because: " Commissioning means the conclusion of a service contract within the meaning of §§ 611 et seq. of the German Civil Code (BGB) or a contract for work and services within the meaning of §§ 631 et seq. of the German Civil Code (BGB) through concurring declarations of intent, not a unilateral 'commission'. Other types of contracts, such as brokerage agreements or agency agreements, are not covered by the wording of the provision. " (MüKoStGB/Mosbacher, 4th ed. 2023, SchwarzArbG § 11 para. 3).

In both cases, under Section 96 of the Residence Act and Section 11 of the Act on Combating Undeclared Work, it is necessary to examine precisely which actions can lead to perpetration or participation – the respective areas of responsibility must be carefully delineated.

The complex range of fines

Less serious, but therefore difficult to oversee, are the administrative offenses, which are characterized by numerous cross-references to various laws.

Section 98 Paragraph 2a of the German Residence Act (AufenthG ) may apply to employers or clients . The prohibition of illegal employment of foreigners is regulated both there (Section 98 Paragraph 2a No. 1 AufenthG) and in Section 404 Paragraph 2 No. 3 of the German Social Code, Book III (SGB III), which—as explained—is punishable above a certain level of severity. Even the use of subcontractors is ineffective , as Section 404 Paragraph 1 SGB III covers precisely this case as an administrative offense. Although the customs authorities are responsible for Section 98 Paragraph 2a No. 1 AufenthG and Section 404 SGB III, in practice, the immigration authorities may also consider themselves responsible here due to their jurisdiction over large parts of Section 98 AufenthG. In the worst-case scenario, an individual may receive two penalty notices for the same, identical offense.

Furthermore, the list of reporting and cooperation obligations pursuant to Sections 17 et seq. of the Posted Workers Act (AEntG) must be observed, the (even negligent) disregard of which is punishable by a fine under Section 23 AEntG – in most cases up to EUR 30,000 ( Section 23 Paragraph 3 Alternative 3 AEntG ). In the case of multiple violations, sums that threaten one's livelihood can quickly accumulate.

Effective prevention

Given the aforementioned reporting and cooperation obligations, the most urgent preventative measure is no surprise: meticulous bookkeeping, sound work organization, and fulfillment of all obligations to authorities . Anyone unsure about specific cooperation obligations (such as those related to employee postings or inbound assignments ) can contact the relevant government agency and request written confirmation of the exact requirements. In our experience, young and ambitious entrepreneurs, in particular, find the seemingly endless regulations incomprehensible, paralyzing, and exhausting, a situation that is only partially alleviated by official support. To prevent bureaucracy from stifling their enthusiasm, delegating tasks—at least partially—can also be a sensible option.

What should you do if accusations have already been made?

Anyone joining a company where mistakes have already been made, like the young managing director in our example, should meticulously document their own work and carefully investigate the conditions under which they can be held partially responsible. In the case of penalty notices, the two-week objection period ( § 67 OWiG ) must be strictly observed – if only to gain sufficient time for planning further action.

At the latest when you receive a summons from customs (whether as a witness or suspect), all alarm bells should be ringing: Remember your right to remain silent ( § 136 StPO ) and immediately consult experts in criminal and immigration law for all further steps.