BAG [Bundesarbeitsgericht – German Federal Labor
Court] of June 26, 2019 - 5 AZR 178/18
Should the employee status of an alleged freelancer be
established retrospectively, the employer can reclaim the fees
paid. Generally speaking, it can be assumed that the remuneration
of a freelancer is higher than that of a dependent employee.
Facts of the case
The defendant was employed by the plaintiff as
an IT employee without fixed hours on the basis of a service
contract. For the "maintenance tasks", the parties agreed
on a reaction time on working days of four hours and as
remuneration "a fee of EUR 60.00 plus VAT at 16 % per hour
incurred". After the termination of the contractual
relationship, the Deutsche Rentenversicherung Bund [German Pension
Insurance Association] determined, at the request of the defendant,
that he was subject to compulsory insurance in all branches of the
statutory social insurance during his entire work with the
plaintiff. The plaintiff was
