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Skatteudvalget 2013-14
SAU Alm.del
Offentligt

Dato: 19. maj 2014

Jura og International

Ansvarlig: vipr

Sagsnr. 2014-3243

Notat

EU-medlemsstaternes definition af begreberne

”lønnet beskæftigelse” og ”selvstændig virksom-

hed”

Indhold

Cypern ................................................................................................................ 2

Finland................................................................................................................ 3

Irland .................................................................................................................. 3

Kroatien .............................................................................................................. 4

Malta .................................................................................................................. 5

Nederlandene...................................................................................................... 5

Polen................................................................................................................... 6

Spanien ............................................................................................................... 7

Sverige................................................................................................................ 8

Tyskland ............................................................................................................. 9

Østrig .................................................................................................................. 9

Side

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Cypern

How does your Member state define the terms "activity as an employed

person" and "activity as a self-employed person", Article 1, litra (a) and

(b) in Regulation 883/2004

"activity as an employed person"

Activity as an employed person is defined in Part I of the First Schedule

of the Social Insurance law N. 59(i)/2010. In particular this consists of



Gainful employment in Cyprus of a person under a contract of

employment or apprenticeship or under such circumstances from

which the existence of en employee-employer relationship may

be inferred including employment by at the service of the Repub-

lic,



Employment of a person under such contract or circumstances as

mentioned above who falls under the scope of Regulation

883/2004 and is employed on a ship flying the Cyprus flag,



Employment in any prison in the Republic of a person going im-

prisonment



Employment of a person under any circumstances by a private

company of which he/she is a shareholder of



Members of the clergy



Employment as local staff of a person who is citizen of the Re-

public at Diplomatic Missions abroad provided that this person

does not fall under the legislation of the host state

"activity as a self-employed person"

Activity as a self-employed person is defined under part I of the Second

Schedule of the Social Insurance law N. 59(i)/2010. In this respect all

gainful activities which do not fall under Part I of the First Sched-

ule (above) is considered as self-employed activity

Which minimum requirements are there for considering a person's ac-

tivity as "an employed person" or a "self-employed person"?

The detrimental factor in considering a person's activity as "an employed

person" is the existence of an employer

–employee

relationship. To this

extent on the basis of jurisprudence the following, non-exhaustive, crite-

ria are evaluated:



The existence of an employment contract



The extent and degree of control the employer has in respect of

the location and the way the activity is performed



The existence of standard working hours



The setting of a specific amount as salary

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EU-medlemsstaternes

definition af begreberne ”lønnet beskæftigelse” og ”selvstændig virksomhed”

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Finland

Definition of the term "activity as an employed is needed for the purpos-

es of the residence based social security only. A person may be entitled

to residence based benefits like family benefits on the basis of employ-

ment even though he/she does not reside permanently in Finland. A per-

son moving from an EU/EEA state to work is covered by residence

based social security during their period of employment if he/she is em-

ployed in Finland for a consecutive period of at least four months and

work meets the minimum requirements concerning working time and

earnings (18 hour /week and earnings must comply with the collective

agreement in the sector concerned).

A person not residing in Finland may be entitled to residence based so-

cial security on the basis of self-employment in Finland when he/she has

uninterruptedly been self-employed for at least four months. A four

mouths period is a minimum requirement in order to be considered as a

self-employed person and covered by the Pension Scheme for Self-

employed.

In other cases it is require that a person is insured under the Employees

Pensions Act as an employed person with income in minimum about 56

euros (in 2014) /month.

Irland

The definition of an employed contributor is provided in Part 2, chapter

2, Section 12 (1)of the Social Welfare Consolidation Act 2005

<http://www.irishstatutebook.ie/2005/en/act/pub/0026/index.html>.

Employed contributors and insured persons.

12.—(1) Subject to this Act—

(a) subject to paragraph (b), every person who, being over the age of 16

years and under pensionable age, is employed in any of the employments

specified in Part 1 of Schedule 1, not being an employment specified in

Part 2 of that Schedule, shall be an employed contributor for the purpos-

es of this Act, and

(b) every person, irrespective of age, who is employed in insurable (oc-

cupational injuries) employment shall be an employed contributor and

references in this Act to an employed contributor shall be read accord-

ingly,

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definition af begreberne ”lønnet beskæftigelse” og ”selvstændig virksomhed”

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The definition of a self-employed contributor is provided in Part 2, chap-

ter 3, Section 20 (1) of the Social Welfare Consolidation Act

2005<http://www.irishstatutebook.ie/2005/en/act/pub/0026/index.html>.

Self-employed contributors and insured persons.

20.—(1) Subject to this Act—

(a) every person who, being over the age of 16 years and under pension-

able age (not being a person included in any of the classes of person

specified in Part 3 of Schedule 1) who has reckonable income or reckon-

able emoluments, shall be a self-employed contributor for the purposes

of this Act regardless of whether the person is also an employed contrib-

utor,

Kroatien

The term employee is defined within the Labour Law as a person who,

on the basis of the employment contract performs certain tasks for the

employer.

There is no definition of the self-employed person, but self-employment

activity is defined within the Act on Contributions as:



an activity of self-employed craftsmen or similar activity record-

ed in the register of crafts, according to the Crafts Act, which is

the main occupation of the person who is compulsory insured on

the basis of that activity ;



an activity of a sole trader registered at the Commercial Court as

a sole trader, in accordance with the Companies Act, which is the

main occupation of the person who is compulsory insured on the

basis of that activity;



free occupation of a person who is on the basis of this activity

compulsorily insured, if this activity is registered in the register

of the relevant authorities or institutions responsible for issuing

of the approval for performing professional activities in accord-

ance with special regulations, or registered in the register of tax

payers (income tax as well as profit tax) of self-employment free-

lance profession on the grounds of membership in professional

associations or vocational chamber or at his/her request ;



an activity of agriculture and forestry performed by a person as a

main activity, who is on the basis of this activity compulsorily

insured, registered in the register of authority/institution respon-

sible for agriculture, or registered in the register of tax payers

(income tax as well as profit tax), if a person is subjected to in-

come tax or profit tax;



other self-employment activity characterised by independence,

permanence and with the intention of creating source of income,

if the activity is registered in the appropriate register or does not

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definition af begreberne ”lønnet beskæftigelse” og ”selvstændig virksomhed”

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require authorisation or registration and if it is the main activity

of a person, who is on the basis of this activity compulsorily in-

sured.

Within the pension insurance, insurees (or insured persons) are listed

within the Pension Insurance Act divided into two groups:

1. employees, salaried civil/public servants and similar persons, ac-

cording to the special regulations

2. craftsmen, merchants, as well as self-employed persons who

conduct professional activity such as lawyers, doctors, dentists,

artists, journalists, educators, lecturers, translators, farmers main-

ly engaged in agriculture or forestry, and the members of family

farms, persons engaged in activities which do not require author-

ization or registration, but have the characteristic of independ-

ence, permanence and the intention of creating a source of in-

come (which actually means „self-employed persons“, although

the term is not explicitly specified)

Similar personal scope (employees and "self-employed persons") is pre-

scribed with the Act on Compulsory Health Insurance.

Malta

In the case of Malta, Article 2 of the Employment and Industrial Rela-

tions Act (Chapter 452 of the Laws of Malta) defines self employment

and employment in terms of the person not of the activity. Indeed it is

stated that "self-employed persons" means all persons pursuing a gainful

activity on their own account. Moreover, an "employee" is defined as

any person who has entered into or works under a contract of service, or

any person who has undertaken personally to execute any work or ser-

vice for, and under the immediate direction and control of another per-

son, including an outworker, but excluding work or service performed in

a professional capacity or as a contractor for another person when such

work or service is not regulated by a specific contract of service. One

may also wish to note the attached Employment and Industrial Relations

Act (Cap. 452) Employment Status National Standard Order, 2012 (LN

44/2012) which further elaborates on the classification between em-

ployed and self employed.

Nederlandene

Article 1a 883/2004: activity as an employed person



In the Netherlands we define ‘activity as an employed person

(‘werkzaam in loondienst’)

as anyone insured under Dutch public

employee insurances. The Dutch public employee insurances are

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

linked to the term ‘werknemer’

(employee). The law regulates

who is an employed person.

The core provision of the term ‘werknemer’

(employee) is as fol-

lows: (article 1, paragraph 1, unemployment law): an employed

person is a natural person younger than the statutory pension age

and is privately or publicly employed. Private employment is the

labour relationship based on a labour contract as defined in Civil

Law. A work relationship can be considered to be a labour con-

tract, if it meets the following criteria: (1) the employed person is

obliged to personally execute the work/labour (2) the employer is

obliged to pay out the salary and (3) the relationship employer-

employee contains an element of authority. A work relationship

under public law is applicable to civil servants.

Then there is final category of people who are employed without

a labour contract, but can be considered to be employed persons,

because on the social-economic position. Examples are small

contractors of work, trade agents and home workers. In case

someone is working as an independent worker, then this person

cannot be considered to be an employed person.

Article 1b 987/2009: activity as a self-employed person

In the Netherlands ‘activity as a self-employed person’ is translated

‘werkzaamheden anders dan in loondienst’

(litteraly: work activities

different from employment). This category is constituted by anyone who

is not insured for the Dutch public employment insurances. Dutch em-

ployment insurances do not contain a definition of ‘self-employed’,

which sometimes difficults to define whether someone is employed or

self-employed, with subsequent consequences for the obligation to pay

employment insurance contributions. The employment insurance agency

and the tax collecting agency have formulated policy rules, which are

used for the assessment of an employment relationship, and which de-

termine the obligation to and access to the employment insurances.

Polen

There is no one definition of "activity as employment or self-

employment persons" and it is generally related with social insur-

ance/social security. In Poland generally persons are covered by Social

Insurance Systems Act (for employee and self-employment persons) and

Farmer's Social Insurance Act (for farmers). Other categories can be also

recognize as "activity as employment persons" under the specific terms,

if they are subject to insurance/social security or special systems for pro-

fessionals.

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Spanien

Article 1.a) of Regulation 883 /2004

provides that the term " employed

activity " means any activity or equivalent situation treated as such for

the purposes of the social security legislation of the Member State in

which such activity or this situation occurs.

According to this provision,

Article 7.1.a ) of Royal Legislative Decree

1/1994 of 20 June,

approving the revised text of the General Law on

Social Security , establishes the scope of the System Social Securi-

ty for purposes of contributory benefits, being that, the employed per-

sons providing services under the conditions set by

Article 1.1 of the

Statute of Workers

in the different branches of economic activity or

assimilated to them , whether temporary, seasonal or permanent, even

batch job, and included mobile workers, regardless , in all cases , the

qualification of the employees, the form and amount of remuneration

received and the common or special nature of employment relationship .

Under this provision,

article 1.1 of Royal Decree 1/ 1995 of 24 March

by the Workers' Statute should be cited to delimit the scope of applica-

tion of this Act to whom provide voluntarily their paid services by others

and within the scope of organization and direction of another person,

natural or juridical, called employer or employer.

Workers employed or assimilated included in paragraph 1.a) of

Article 7 of the General Social Security Law shall be compulsori-

ly included in the General System of Social Security.

- Article 1.b ) of Regulation 883 /2004

provides that the term " Self-

employment " means any activity or equivalent situation treated as such

for the purposes of the social security legislation of the Member State in

which such activity or this situation occurs.

Article 7.1.b ) , paragraphs 1 and 3 of the Royal Decree 1 /1994, 20

june

, states that, for the purposes of contributory benefits , self-

employed, over eighteen, whether or not holders of individual or family

businesses, who meet the requirements expressly specified in the regu-

lations will be included in the Social Security System.

Thus, Decree 2530/1970 of 20

. August,

establishing the Special Re-

gime of Social Security workers defines the self- employed person as

the person who regularly, habitually, personally and directly performs

a profit economic activity, without being fastening to a labor contract

and regardless using or not others´s paid service . Unless proven other-

wise, it is assumed that he/she is an self- employed for the purposes of

this special scheme, if the same is the owner, tenant, usufructuary or

similar legal concept of the business is running

In accordance with this regulation, it should be mentioned

Law 20 /2007

of July 11 of the Statute of Self Employed worker.

Article 1.1 in-

cludes in its scope the person performing regularly, personally, directly,

by his/her own and outside the scope of management and organization of

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another person, a business or profit professional activity, regardless hav-

ing or not employees.

The self- employed or freelance over eighteen necessarily is included in

the Special Regime of Social Security for the Self

–Employed.

Never-

theless, some specific groups of self-employed, may be included in other

social security regimes because of their membership of a particular in-

dustry

This law also introduces the concept of

economically dependent work-

ers.

They are those who perform usually, personally, directly an eco-

nomic or profit professional activity mainly for one natural or legal per-

son, named the client, and from whom he/she receives at least at least 75

percent of their income working or income.

The self- employed or freelance over eighteen necessarily is included in

the Special Regime of Social Security for the Self

–Employed.

Never-

theless, some specific groups of self-employed, may be included in other

social security regimes because of their membership of a particular in-

dustry.

However, the directors or managers or counsellors of the board , or those

who habitually, personally and directly provide other profit services for

a private corporation, will be also included in this Special Scheme for

the Self -Employed , provided they have the, direct or indirect control of

it. It is assumed that such circumstance occurs when the shares of the

worker involve at least half of the share capital (DA 27A of the Social

Security Law).

For a person to be considered an employee, several requirements should

be met: voluntariness, (work voluntarily) working for others (fruits of

the labor are for the employer); and retribution and dependence (subject

to the employer´s order). On the contrary, it is deemed to perform a self-

employed individuals over eighteen when exercising regularly , person-

ally and directly an economic or profit professional activity, without

being subject to a labor contract regardless using or not of other`s paid

service

Sverige

* How does your Member state define the terms "activity as an em-

ployed person" and "activity as a self-employed person", Article 1, litra

(a) and (b) in Regulation 883/2004?

- The terms are not defined in Swedish national legislation. There are

provisions within the Swedish Social Insurance Code (SIC) to determine

which situations to consider as work as employed and work as self-

employed. According to the basic principle in SIC, a person is covered

by the work-based insurance if a person works in Sweden. Work is con-

sidered as gainful employment in Sweden. A natural person who con-

ducts business and have a permanent establishment in Sweden, shall in

respect of that business, be seem as conducted in Sweden. As a rule the

definition of "work" in the SIC, which is applied in the social security

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field, is broader than the terms employed, worker etc. which is to be

found in other legal fields.

* Which minimum requirements are there for considering a person's ac-

tivity as "an employed person" or a "self-employed person"?

- There are no such minimum requirements established in the Swedish

legislation.

Tyskland

"activity as an employed person":

According to the rulings of the European Court Of Justice (ECJ), a per-

son is to be considered as employed in the sense of Art. 1 lit. (a) regula-

tion 883/2004 if the person is covered by at least one of the branches of

social security listed in Art. 3 para. 1 of regulation 883/2004. Therefore

in our understanding the branch of social security stipulating the least

conditions in order to be covered is decisive and its conditions apply. In

Germany, the statutory insurance against accidents at work only requires

that the person is employed and does not stipulate any other conditions.

In Germany the term employment is defined especially in distinction to

self-employment. Therefore, a person is employed if he or she works

under the supervision of an employer being dependent on the employer

as regards time, duration, location and modus of the work.

However, this interpretation only concerns the basic question if a person

is to be considered as employed in the sense of Art. 1 lit. (a) regulation

883/2004. Concerning other situations or especially the application of

other branches of social security, additional requirements may apply. For

example the application of the German statutory sickness insurance re-

quires additionally that a person receives a remuneration for its work.

"activity as a self-employed person":

The afore mentioned principles stipulated by the ECJ also apply con-

cerning the question if a person is to be considered as self-employed in

the sense of Art. 1 lit. (a) regulation 883/2004. A self-employed per-

forms a professional activity without being employed as an employee.

Therefore a self-employed person does not work under the supervision

of an employer and does generally not depend on other persons concern-

ing the time, duration, location and the modus of the work.

Østrig

The Austrian social security scheme is largely dominated by the Bis-

marckian principle. That means that only economically active persons

are covered. Thus it is also not so difficult to identify those who are cov-

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ered by the Regulations as exercising an employed or self-employed

activity. We regard persons as covered by that definition who are com-

pulsorily insured as gainfully active persons under the relevant social

insurance laws. This has also as a consequence that persons exercising

only marginal activities and who thus are not covered by compulsory

insurance in all branches cannot be regarded as exercising an employed

or self-employed activity.

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definition af begreberne ”lønnet beskæftigelse” og ”selvstændig virksomhed”