What is the gain for the driver
Are farmers self-employed as drivers for an agricultural collection community?
The Landshut Social Court had to decide whether drivers are self-employed or employed for a sugar beet transport company.
How can you find out whether someone is doing a job independently?
If it is unclear whether someone is self-employed or whether it is a dependent employment relationship, a status determination procedure can be applied for at the clearing house of the German Pension Insurance Association (Section 7a SGB IV). The clearing house then decides whether the activity carried out is subject to compulsory social insurance.
Why did the farmers complain?
In the event of a dispute, over 700 farmers had come together to form a transport association in the form of a GbR. This in turn founded a GmbH & Co. KG for the use of shared machines for transporting sugar beet, in which the farmers are indirectly involved as limited partners.
The farmers involved in the transport association and indirectly in the GmbH & Co. KG as limited partners were active as drivers in the transport of sugar beets. They were unsure whether their self-employment as drivers would be recognized and whether they were not employed subject to social security contributions. Therefore, the parties involved applied for a status determination procedure at the clearing house of the German Pension Insurance Association.
This classified the activity as dependent employment. In doing so, she referred to general rules and did not take into account the arguments of the farmers either in the application process or in the objection process. Thereupon the GmbH & Co. KG took legal action against the decision of the German Pension Insurance Association.
How did the court decide?
The Landshut Social Court recommended a settlement to the German Federal Pension Insurance Fund in the subsequent court proceedings. As part of this court settlement, the German Pension Insurance Association recognized the drivers' independence for the transport community.
In doing so, the court took into account in particular that
- the farmers were able to carry out orders taking into account their personal work capacity,
- as a driver they had a particularly flexible profit sharing and
- Their capital employed was based on the sugar beet delivery law they held.
The farmers as drivers and indirect shareholders of the transport company therefore had an entrepreneurial interest in the profit of the GmbH & Co. KG.
This is what you should pay attention to
“The independence of a driver for a transport community must always be checked on a case-by-case basis. Entrepreneurs shouldn't take this lightly. Because if it only becomes apparent after a certain period of time that an activity is subject to compulsory insurance, there is a risk of high back payments, ”warns attorney Adelheid Holme. You can usually only get back part of the employee's paid employee shares, limited to the next three pay slips.
"Apply for status determination within one month of starting work at the German Pension Insurance Association," advises Ecovis expert Holme. If the Deutsche Rentenversicherung Bund establishes a dependent employment relationship, the insurance obligation does not apply until the employment relationship is announced. If those concerned submit the application later than one month after starting work, the total social security contributions must be paid from the start of the activity classified as dependent employment.
Adelheid Holme, lawyer at Ecovis in Landshut
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