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The amount of the fee is an important indication of self-employment
18. Januar 2019
The Federal Social Court (BSG) has decided in a trend-setting judgement (of 31.03.2017, Az. B 12 R 7/15 R) that an agreed fee, which lies clearly over the remuneration of a comparable employee liable for social security contributions, is an important indicator for an independent activity. Facts of the case:
A complaint had a district. As part of the youth welfare service, he also concluded contracts with individuals who provided youth welfare services. In the course of an examination, the German Pension Insurance found that the curative teacher who worked for the plaintiff was bogusly self-employed. He received a fee of approximately 40 euros per hour. Decision of the BSG:
The curative teacher was not dependent according to BSG busy, since it could work instruction-free and was not integrated into the work organization of the district. Also the welfare teacher had rejected orders several times. Even only a very small entrepreneurial risk, as it was present in the judgement case, is with pure services in opinion of the judges of subordinate importance.
The fee was of particular importance in the overall assessment of the circumstances. According to BSG the agreed fee lay clearly over the fee of other firmly employees educating advisors and speaks therefore for an independence. Decisive is whether the higher fee permits an autonomous private provision. As own precaution it must be at least considered that the independent one would have to carry the employer portions for social insurance. Attention: High fee is not a free ticket
However, relying solely on the amount of the fee is not sufficient. A high fee alone does not automatically lead to independence. Furthermore, an overall view of all circumstances of the individual case is decisive.
The social court Heilbronn decided with judgement of 01.02.2017 (Az. S 10 R 3237/15) that a nurse, who was active as a „free employee“ for several hospitals, is dependent employed, although she received approx. 6,000 euro monthly fee for her activities. However, due to her integration into the client’s company, her self-employment was denied. The LSG Schleswig, on the other hand, decided in several judgments (ref. L 5 KR 74/15, L 5 KR 90/15 and L 7 R 5035/17) that a nurse was employed dependent on 15-18 Euro, but could be self-employed with 22 Euro.
As a result, there is currently more uncertainty than legal certainty. The BSG has however the possibility its iurisdiction regarding the fee height further to concretize, since at present under Az. B 12 R 3/18 R a procedure is pending to even this topic.
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