As a general rule, the immigration of foreign employees to Germany from Romania and Bulgaria as well as from third countries, is controlled by a two-level demand-driven system:
- Access to the German labour market under a legal provision
- Job-specific assessment through ascertaining whether a preferential worker is available for the employment in question (so-called priority examination) and comparable working conditions with those of national workers.
For higher levels of qualification, foreigners' employment law makes provisions for facilitating employment at both stages. Closer regulation of immigration makes a distinction between workers from the new EU Member States and third countries:
Employment of third-country nationals (employees from non-EU/EEA states)
Third-country nationals fall under the purview of the Residence Act (Aufenthaltsgesetz), which contains the fundamental provisions concerning the employment options open to third-country nationals. On the basis of section 42 of the Residence Act, the Federal Ministry of Labour and Social Affairs additionally issued two ordinances regulating the employment of foreigners:
- concerning the procedure and permits for foreigners living in Germany to take up gainful employment, the Ordinance on Official Procedures Enabling Resident Foreigners to Take Up Employment (Beschäftigungsverfahrensverordnung - BeschVerfV), and
- the Ordinance on the Admission of Newly-Arrived Foreigners for the Purpose of Taking up Employment (Beschäftigungsverordnung - BeschV).
Employment of new Union citizens/application of transitional provisions
Since 1 May 2011 the free movement of workers applies in full to EU-8-Union citizens. These are citizens from Poland, Hungary, the Czech Republic, Slovenia, Estonia, Latvia, Lithuania and Slovakia.
Contrastingly citizens from Romania and Bulgaria cannot as yet lay an unconditional claim to the European fundamental freedom of the free movement of workers. Under the treaties of accession, labour market access for new Union citizens can still be regulated under national or bilateral law during a three-phase, transitional period lasting a total of seven years (2+3+2 system). Germany currently applies the second phase of transitional arrangements for Bulgaria and Romania (1 January 2009 - 31 December 2011). The Federal Government transmitted the required the notification to the European Commission prior to commencement of the second phase and published it in the Federal Gazette (Bundesanzeiger [BAnz.]) (Federal Gazette 2008, pp. 4807 et seqq.).
The usage of the transitional provisions does not mean, however, that new Union citizens are entirely excluded from access to the German labour market. National law provides for much-used access options again expanded as per 1 January 2009 and betterments compared to third-country nationals.