Case-by-case decision: Circus performers are freelancers BAG 11.08.2015 - 9 AZR 98/14

The Federal Labor Court had to deal with the question of whether the deployment of a group of circus performers constituted a service contract or an employment relationship. While the circus performers assumed the establishment of an employment relationship and the employer's obligation to register for social security, the circus assumed a free service contract relationship without an obligation to pay social security contributions.

The decision of the Federal Labor Court was based on the following facts:

A group of artists performed a "high wire and death wheel act" in a circus. The group concluded a "contract for freelance work" with the circus. After a member of the group of artists had an accident during the premiere, it turned out that the circus company had not insured the group against illness. As a result, the group of artists refused to continue performing. The circus company terminated the contractual relationship without notice. The group of artists took legal action against this termination before the labor court.

At first instance, the action was dismissed on the grounds that there was no employment relationship between the parties. The second instance assumed the existence of an employment relationship. According to this decision, the circus operator would have had to register the group for social insurance and thus also take out health insurance. The Federal Labor Court, however, followed the decision of the first instance and denied the existence of an employment relationship.

According to established case law, the decision as to whether a service or work contract or employment relationship exists depends neither on the name of the contract nor on the desired legal consequences of the parties. Only the actual circumstances of the individual case are decisive. Characteristics that speak in favor of an employment relationship are, above all, personal dependence and the obligation to follow instructions. The Federal Labor Court was unable to establish either of these in the present case, and the characteristic right to issue instructions was not provided for in the employment contract. As a result, the action for protection against dismissal was dismissed by the Federal Labor Court, as the court did not consider an employment relationship to exist.

Date: 11. Aug 2015