Herrenberg ruling: Self-employed or employed in the cultural sector?

German Cultural Council presents key points on the Herrenberg ruling

presents key points for the definition of self-employment in its statement "Ensuring legally secure and low-bureaucracy self-employment in the cultural and media sector – decisively countering bogus self-employment." Federal Ministry of Labor and Social Affairs German Social Code, Book IV (SGB IV), next year, also in response to the Herrenberg ruling . Currently, only dependent employment is defined there.

In its statement, the German Cultural Council emphasizes that gainful employment in the arts, culture and media sector is characterized by self-employment, dependent employment and so-called hybrid employment, i.e. the alternation or parallel exercise of dependent employment and self-employment.

All forms of employment are legitimate and each requires appropriate remuneration.”

In addition to primary employment, whether in dependent employment or self-employment, secondary employment a significant role in some fields within the arts, culture, and media. This secondary employment should be characterized by the same social security benefits as the primary occupation. Bogus self-employment must be decisively countered. This requires that cultural institutions and publicly funded organizations be adequately provided with resources.

The intended definition of self-employment must provide legal certainty and be designed to be as bureaucratic as possible.

Characteristics of self-employment

The German Cultural Council lists the following characteristics of self-employment, among others:

Self-employed individuals bear entrepreneurial responsibility, and this also applies to solo self-employed individuals. They typically work for multiple clients. They carry out their work in different locations, such as their own business premises, or at the premises of clients or customers. The lack of their own business premises is not an obstacle to self-employment. They are not integrated into the company, but can use the infrastructure (premises, technology, equipment, etc.) or operating resources of clients or customers.

Self-employed individuals are generally free from instructions. However, in project-based teamwork, situations may temporarily arise in practice where binding agreements and instructions, including those from the client, are necessary. Artistic guidelines or instructions given to self-employed contributors during rehearsals or performances are not equivalent to instructions in the sense of social security law.

Similarly, instructions or artistic specifications given by freelancers to employees do not establish a dependent employment relationship. Freelancers are sometimes subject to content-related or organizational requirements set out by their clients, which the clients must pass on. Examples of this include requirements from quality assurance institutions within the framework of certification procedures or from auditing authorities to ensure uniform national standards.

Self-employment can also be pursued on a part-time basis. This can be done alongside full-time dependent employment, full-time self-employment, in retirement, or alongside full-time studies.

Demand for safeguarding and protecting those employed in art, culture and media

With regard to the planned legal distinction between self-employment and dependent employment, the German Cultural Council demands that the aforementioned characteristics of self-employment in the cultural and media sector, as well as social security through the artists' social insurance scheme , be taken into account, as well as the need for protection of those employed in . It is also essential to adequately consider part-time self-employment.

The managing director of the German Cultural Council, Olaf Zimmermann , said:

“Both dependent employment, self-employment, and hybrid employment are fundamental to the cultural and media sector. Appropriate remuneration must be a given for all forms of employment. The definition of self-employment planned by the Federal Ministry of Labor and Social Affairs must reflect the nature of work in a modern knowledge society and, in particular, must offer legal certainty and be implemented with minimal bureaucracy. The German Cultural Council has now taken the initiative with its statement. We eagerly await the draft legislation from the Federal Ministry of Labor and hope for legal certainty and clarity after the uncertainty caused by the Herrenberg ruling.”

The statement “Ensuring legally secure and low-bureaucracy self-employment in the cultural and media sector – decisively countering bogus self-employment” by the German Cultural Council can be found here .

Joachim Rodriguez y Romero

Owner and Managing Director of Kunstplaza . Publicist, editor, and passionate blogger in the fields of art, design, and creativity since 2011. Graduated with a degree in web design from university (2008). Further developed creative techniques through courses in freehand drawing, expressive painting, and theatre/acting. Profound knowledge of the art market gained through years of journalistic research and numerous collaborations with key players and institutions in the arts and culture sector.

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