The law could perceive a circumstance of Scheinselbstständigkeit by
- only one client over a longer period,
- no employee (solo self-employed or solo entrepreneur),
- works primarily in the rooms of the client and
- does not pay statutory social contributions, but into private security systems
- Is required to adhere to office rules, norms or operating hours
It should be noted that legally speaking it does not matter if a freelancer would only have one client or if they have 50 - that is not the definition of self-employment, as evidenced in some of the circumstances above. Apparent self-employment occurs when, according to the contract, someone provides independent services or works for a foreign company, but actually works as if in an employment relationship. The difference to a salaried employee is mainly that no social security contributions and payroll taxes are paid and the rights such as dismissal protection and leave entitlement are eliminated. The difference to a self-employed result from the elimination of typical entrepreneurial actions such as the provision of services in their own name and on their own account, customer acquisition, marketing measures, free time allocation, use of capital and employees.
The different interpretations in the labor and social law can lead to the difficult to explain legal situation in Germany. Which is, claiming of in-house working conditions for those who wish to do so, with a high legal risk (for example, in contracting) while conversely being forced (by the circumstances!) to abandon their free-choice life. To what extent here, especially in borderline cases such as employee-like self-employed, basic rights such as contract autonomy can be adequately assessed and ultimately will be questioned in individual cases. This applies in particular if the vulnerability of the persons affected as well as paid-in contributions to existing social security systems are not sufficiently examined before restricting freedom of contract.
The legal regulations in Germany have been revised several times. After a classification was first made on the basis of individual concrete circumstances in 1999, the law now states: "Clues for employment are an activity according to instructions and an integration into the work organization of the instruction provider." The self-employed will be in a comprehensive overall view. A lawful overall assessment requires the circumstances of the case essential, and that all elements of the context are to be taken into account, recognized in its scope and recognized correctly weighted in the overall view with this weight and then can the correct individual determination then be made. Therefore, these criteria still include the organization of working time, the opportunity to provide the agreed services by third parties and the overall entrepreneurial performance. Thus, as mentioned before, the number of clients is relevant, even if this is not a direct criterion (more). The same applies to acquisition behavior , market presence and entrepreneurial risk.