Dienstag, 08.10.2019
Fee-based physicians at the hospital are regularly subject to social security contributions...
from
Dr. jur. Marc FornaufLawyer
Specialist tax lawyer
Specialist in criminal law
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[...] the Federal Social Court stated in a [...] press release dated June 4, 2019. In the Leitfall decision of the 12th Senate (Az B 12 R 11/18 R), it was ruled on the same day that [...]are not to be regarded as self-employed in this capacity, but as employees of the hospital subject to social security contributions.
The reasoning continues:
When working as a doctor, an occupation subject to social security contributions is not excluded from the outset because of the special quality of medical care as a "higher-level service". What is crucial is whether those affected are bound by instructions or integrated into a work organization.
The latter is regularly the case for doctors in a hospital because there is a high degree of organization there over which the affected persons have no entrepreneurial influence of their own. Thus, anesthetists - like the doctor in the leading case - are usually part of a team during an operation, which has to work together under the direction of a responsible person. Working as a ward physician also regularly requires that those affected fit into the given structures and processes. In the leading case, the physician was repeatedly on day and on-call duty and predominantly worked in the operating room.
In addition, locum doctors predominantly use the personnel and material resources of the hospital in their work. Thus, the doctor was no different from doctors employed by the hospital and was fully integrated into the hospital's operations. There is generally no entrepreneurial leeway in the work of a locum doctor in a hospital. The amount of the fee is only one of many indications to be considered in the overall assessment and is not decisive in the present case.
A possible shortage of skilled workers in the health care sector has no influence on the legal assessment of the existence of compulsory insurance. Social security regulations on compulsory insurance and contributions cannot be overridden in order to make the profession more attractive by offering higher pay "exempt" from social security contributions.
Note:
In addition to the social security contribution claims, this assessment also results in criminal law risks, particularly for those in positions of responsibility in hospitals, with regard to the offense of § 266a of the German Criminal Code (StGB) (withholding and embezzling of earnings).
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.