According to § 631 of the German Civil Code (BGB), a contractor is obligated by a contract for work and services (Werkvertrag) to produce the promised work. The subject of a contract for work and services is the creation or alteration of an item, or another outcome to be achieved through labor or service. In contrast, the subject of a service contract according to § 611 para. 1 BGB is the activity itself. In an employment relationship, the agreed activity is performed under instruction, meaning in personal dependence. The nature of the legal relationship must be determined based on an overall assessment of all relevant circumstances of the individual case. If the agreement and the actual execution contradict each other, the latter is decisive.
The parties are disputing whether an employment relationship or a contract for work and services exists between them. The plaintiff has worked for the defendant intermittently since 2005, based on ten contracts designated as contracts for work and services. The last contract, dated March 23/April 1, 2009, stipulated "preliminary work for the re-qualification of the monument list for the independent city and district of Fürth, as well as for the district of Nürnberger Land." Subsequently, the plaintiff's task was to record and re-qualify archaeological monuments in an IT-supported system as part of the re-qualification and revision project of the Bavarian State Office for Monument Preservation (BLfD). Depending on the location of the local files, the activity could only be performed in the BLfD offices. The plaintiff did not possess a key to these offices. He regularly worked from 7:30 AM to 5:00 PM; access to the input masks was enabled via a provided PC workstation with a personal user ID. The deadline for completing the agreed services was calculated based on the number of known archaeological sites in the work area and set for november 30, 2009. The plaintiff was permitted to invoice the remuneration of EUR 31,200 including VAT in individual amounts of EUR 5,200 after completing the processing of specific areas.
The lower courts determined that, based on the true nature of the business relationship, an employment relationship existed between the parties. The defendant's appeal before the Tenth Senate of the Federal Labor Court was unsuccessful. The very structure of the "contract for work and services" indicates that a specific activity is owed, rather than the production of an item or a specific outcome. The Regional Labor Court's assessment that the accumulation and intensification of the plaintiff's ties, when viewed holistically, should be considered an activity performed in personal dependence, is not objectionable under appellate law.
Federal Labor Court, Judgment of September 25, 2013 – 10 AZR 282/12
Lower Court: Regional Labor Court Munich, Judgment of november 23, 2011 – 5 Sa 575/10 –
Source: BAG Press Release
Goldberg Attorneys at Law 2013
Attorney Dirk Möller
Email: info@goldberg.de
