This week I had an interesting request – a graphic designer previously working as an employee in the United States is moving to Germany in the next few months for family reasons. From Germany, he then wants to work remotely as a freelance graphic designer for a British company.
First of all, the term “freelancer” triggers the thought of the abstract danger of “bogus self-employment” in most legal scholars. Specifically, a list of indications comes to mind (integration into the operational structure of the company, dependence on instructions, responsibility for other employees, etc.), which usually lead to a classification as “bogus self-employed” (at least in a purely national case).
In order to avoid the suspicion of bogus self-employment in the first place, compliance with the following criteria can help: First, the freelancer should have freedom in the organization of his working time and in the completion of his tasks. Secondly, integration into the hierarchy of the company should be avoided at all costs. However, “control mechanisms” regarding the quality of work on the part of the client shall not be harmful. Furthermore, the freelancer should not be integrated into the organic structure of the company, but should be separated from it, e.g. by a detached e-mail system, local separation, etc. Last but not least, economic independence is also desirable, for example through multiple clients.
Ultimately, however, it is always the actual working relationship that is decisive and not the written contract.(Mstoian, Working with external service providers: The pitfalls, Seeds of Law, 2021)
In the specific case, many of these point were actually violated, simply because the freelancer should be used as a direct management person with authority to issue directives to regular employees of the company. Thus, a legally secure design as a “freelancer” can only conceivable with quite some difficulty.
In addition, one legal issue was also the connection with the United Kingdom. This gave rise to further questions regarding practical governmental / judicial review, the law on posting of workers, social security and double taxation.
In an initial meeting, I have now addressed the most important problem points. We will see to what extent a legally safe implementation will possible here. I may bring up the case in the future again.
UPDATE: Following the consultation, the client finally decided against a legal arrangement as a freelancer. Instead, the client and the company are now attempting a legal arrangement in the form of a regular employment contract.