According to § 631 BGB, the contractor is obliged by a contract for work to produce the promised work. The object of the contract for work and services is the production or modification of an object or another result to be achieved through work or service. In contrast, the object of a contract for services under section 611 (1) BGB is the activity as such. In an employment relationship, the agreed activity is carried out in accordance with instructions, i.e. in personal dependence. Which legal relationship exists is to be determined on the basis of an overall assessment of all relevant circumstances of the individual case. If the agreement and the actual performance contradict each other, the latter is decisive.
The parties dispute whether an employment relationship or a contract for work and services exists between them. The plaintiff has worked for the defendant, with interruptions, since 2005 on the basis of ten contracts described as contracts for work. In the last contract of 23 March/1 April 2009, the "preparatory work for the post-qualification of the list of monuments for the district-free city and district of Fürth as well as for the district of Nürnberger Land" was agreed. According to this agreement, the plaintiff's task was to record and requalify ground monuments in an EDP-supported system within the framework of the requalification and revision project of the Bavarian State Office for the Preservation of Monuments (BLfD). Depending on the location of the site files, the work could only be carried out in the offices of the BLfD. The plaintiff did not have a key to these offices. He regularly worked from 7.30 a.m. to 5 p.m. and was given access to the input masks via a PC workstation provided with a personal user ID. The deadline for completion of the agreed services was calculated on the basis of the number of archaeological sites known in the working area and set for 30 November 2009. The plaintiff was allowed to settle the remuneration of 31,200 euros incl. VAT in individual amounts of 5,200 euros after completion of the work on certain areas.
The lower courts found that an employment relationship existed between the parties according to the true content of the business. The defendant's appeal before the Tenth Senate of the Federal Labour Court was unsuccessful. The formulation of the "contract for work and services" already indicates that it is not the production of an object or a result that is owed, but a certain activity. The appraisal of the Regional Labour Court that the accumulation and consolidation of the plaintiff's commitment was to be assessed in an overall view as an activity in personal dependence is not objectionable under the law of revision.
Federal Labour Court, Judgement of 25 September 2013 - 10 AZR 282/12
Previous instance:Regional Labour Court Munich, judgement of 23 November 2011 - 5 Sa 575/10 -
Source: Press release of the BAG
Goldberg Attorneys at Law 2013
Lawyer Dirk Möller
E-mail: info@goldberg.de
