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Taking up a self-employed activity in Germany for foreigners

In principle, entry restrictions apply to foreigners from countries, which are not members of the EU, who wish to pursue a self-employed activity in Germany.

By contrast, foreigners from EU Member States have the same rights and obligations as German nationals when pursuing a self-employed activity.

Within the framework of international treaties, nationals of Iceland, Liechtenstein and Norway are governed by the same provisions on freedom of movement. In addition, there are a number of intergovernmental and EU agreements with different regulatory provisions.
These intergovernmental agreements are subject to amendment and it is, therefore, advisable to seek information about the current status from the competent Ausländeramt (Aliens' Registration Office).

In the chamber district of Frankfurt am Main the competent offices are:

City of Frankfurt am Main
Ordnungsamt (Municipal Public Affairs Office)
Ausländerbehörde (Aliens' Registration Office)
2nd and 3rd floors

60326 Frankfurt am Main
Internet: Stadt Frankfurt
Tel.: ++49 (0)69 212 44422
Tel.: specifically for EU, EFTA, EEA nationals:+49 (0)69/ 212-42641 or 212-42624

Hochtaunus region:
Allgemeine Landesverwaltung (General Regional Administration)
Ludwig-Erhard-Anlage 1-4
61452 Bad Homburg v.d. Höhe
Tel.: ++49 (0) 6172/999-0
Einreisestelle (Entry office): ++49 (0) 6172/999-3231

Main-Taunus region:
Allgemeine Landesverwaltung (General Regional Administration)
Am Kreishaus 1-5
65719 Hofheim
Tel.: ++49 (0) 6192-201-0

An Aufenthaltsgenehmigung (residence permit) in the form of a visa is, in principle, to be obtained prior to entry from the German foreign representation. The applications are then passed on via the Auswärtiges Amt (Foreign Office) to the Ausländerbehörde (Aliens' Registration Office) competent for the intended place of residence.

Exceptions: In accordance with § 9 of the Ordinance on the Enforcement of the Aliens' Act (DVAuslG) nationals of EU Member States, of other signatory states to the Treaty on the European Economic Area and Switzerland may obtain the necessary Aufenthaltsgenehmigung (residence permit), irrespective of the type of permit, after entering the country.
The same applies to nationals of Australia, Israel, Japan, Canada, New Zealand and the USA.

When foreigners with a residence permit are already in Germany, the inhibition note in the passport "Aufnahme...er selbständigen oder vergleichbaren unselbständigen Erwerbstätigkeit verboten" (prohibited from pursuing a self-employed activity or similar employed activity) must be removed prior to taking up a self-employed or employed activity.

The inhibition is normally entered as a condition in the passport when granting a residence permit for third-country nationals. However, anyone who already has an Aufenthaltsberechtigung (right of residence) or an unlimited Aufenthaltsgenehmigung (residence permit), is given a residence permit without an inhibition; the same applies to third-country nationals who are married to a German national.

The Aliens' Registration Offices are responsible for all measures and decisions pertaining to residence law; local responsibility is determined by the actual or intended place of residence of the foreigner.

Public need examination

In proceedings under aliens law concerning the taking up of a self-employed activity, the competent chambers, because of enforcement provisions, decrees or expert instructions, are asked by the Aliens' Registration Office to prepare an expert opinion as to whether there is an overriding economic interest or a specific local need. These opinions are only submitted to the authority in question but now, however, to the applicant. The authority is not bound by these expert statements since the Aliens' Registration Office has sole decision-making power. The authority informs the applicant of its decision in writing.

There may be grounds for an overriding economic interest for instance in the case of considerable investment, the creation of additional jobs or the erection of full-scale plants for especially high grade technical or environmentally compatible products. The promotion of import and export relations with specific market knowledge of the country concerned may also be grounds for an overriding economic interest.

A special local need will be examined for instance by looking at the commercial/industrial structure of the location concerned in respect of the over or undersupply of the applicant's intended activity.

The effects on existing companies or the improvement of the market opportunities of companies based there may also be taken into account in the evaluation.

All commercial/industrial activities, freelance activities like architect, engineer, doctor, accountant, artistic activities and activities related to primary production like agriculture and forestry undertakings are deemed to be self-employed activities.

Managing directors of a GmbH (limited liability company), employed managing directors and members of the executive boards of public limited companies are also engaged in a self-employed activity. Prokurists (persons vested with power of representation) and senior management are likewise deemed to be self-employed.

A mere capital interest, for instance as a dormant partner or limited partner of a KG (limited partnership), is not deemed to be a self-employed activity nor is a minority shareholding in a GmbH. However, anyone who has a majority shareholding in a GmbH is deemed to be self-employed.
Several foreigners who have a minority shareholding in a GmbH are deemed to be self-employed when together they hold the majority and can thus dominate the company in economic terms and are empowered to issue instructions.

Activities in the travel sector, even when they are pursued on an employed basis, are deemed to be self-employed activities.

Foreigners who work for a foreign company which has a branch registered in the commercial register or a dependent place of business not entered in the commercial register in Germany must also meet the requirements under aliens law for their managing directors or representatives, which permit self-employed activity.

From the very outset anyone who is the employee of a foreign company whilst retaining his normal place of residence abroad, anyone who works as a member of the flag staff in cross-border passenger and freight traffic or anyone who sets up, assembles or maintains a machine supplied by a foreign company is not deemed to be gainfully employed in Germany. The same is true of any foreigner who holds discussions or negotiations for a foreign company or undergoes a course of in-company training in conjunction with export supply and license agreements, anyone who assembles, dismantles or looks after the fair stands of a foreign company or provides comparable services. The length of employment may not, however, exceed three months. This exemption also applies to the self-employed living abroad.

Anyone who wishes to repeatedly enter federal territory for professional reasons will be given a business visa for that purpose every year for up to three months. An extension for a further three months is possible. The foreigner must, however, retain the customary centre of his vital interests abroad.

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