Relief for educational institutions-new § 127 SGB IV defuses liability risks of the Herrenberg judgment-decision of the Bundestag of January 30, 2025
With the so-called Herrenberg judgment of June 28, 2022 (B 12 R 3/20 R), the Federal Social Court decided in an individual case on the compulsory insurance of the activity of a music teacher at an urban music school based on employment. As a result, the top organizations of the social security (German Pension Insurance BUND, top association of the statutory health insurance and the Federal Employment Agency) advised on May 4, 2023 on the insurance law assessment of teachers and published the discussion result. According to this, the assessment standards specified against the background of the highest judicial judgment for the assessment of the acquisition status of teachers at universities, high and universities of applied sciences, technical schools, adult education centers, music schools as well as other- also private- educational institutions from July 1, 2023, even in ongoing inventory, at the latest.
Educational institutions and teachers have been based on the standards that have long been approved by the top associations of social security for the classification of a teaching activity as a dependent employment or independent activity, which were derived from the relevant case law in front of the Herrenberg judgment. On this basis, the organizational and business models have established themselves in large parts of the education sector for the use of independent teachers.
As a result of the judgment, educational institutions feared high subsequent claims of social security contributions and saw themselves at risk. In addition, educational institutions and teachers complain about legal uncertainties regarding the design of the contracts with independent teachers. In the area of educational institutions, 265,000 people had a self -employed activity in 2023. There was a liability risk for many sponsors regarding the liability of social security contributions.
The Bundestag responded and decided on January 30, 2025 a transitional regulation for teaching activities in § 127 SGB IV. This regulation still needs the approval of the Federal Council at its meeting on February 14, 2025. This consent is likely to be granted, so that the change will come into force before the Bundestag election. This transitional regulation gives the parties concerned time to make the necessary changes in the organizational and financing models for educational institutions.
The new § 127 SGB IV stipulates that the activity of teachers in the form of an independent, non -social security activity and non -wage tax -liable to pay for a limited transition period - for the time being to a limited time until December 31, 2026 - must be designed and thus refrained from a mandatory termination of social security contributions. The application of the transitional regulation presupposes that
the contracting parties in the event of a conclusion of the contract consistently assume or have assumed independent activity and
the subject affected approves that.
However, this regulation only includes "real teachers" who are subject to pension insurance as an independent. In practice, this means that people who have not fallen under the scope of an “self -employed teacher” within the meaning of Section 2 No. 1 SGB VI will remain completely subject to social security contributions. Universities and educational institutions must therefore very carefully check whether the teachers commissioned actually actually meet the prerequisites of the planned standard, since it can be expected that the German pension insurance will be particularly critical in the future.
We would be happy to advise educational institutions on the implementation of the new § 127 SGB IV and support the necessary change in the organizational models.
Lawyer/specialist lawyer for labor law Golo Busch, Dortmund location, is available for questions about the consequences of the Herrenberg judgment and the new legal regulation of § 127 SGB IV.
