Tenor
The plaintiff’s appeal against the judgment of the Hessian State Social Court of September 29, 2022 is dismissed.
The plaintiff shall also bear the costs of the appeal proceedings with the exception of the costs of the defendant.
The amount in dispute for the appeal proceedings is set at EUR 5,000.
G r o u n d s :
I
1
The parties are in dispute about the insurance status of the defendant during his assignments for the plaintiff as an aircraft pilot in the period from 15.4.2015 to 31.12.2016.
2
The plaintiff is a company that produces and distributes sausage products. Its group of companies includes A. Logistik GmbH & Co KG, which owned an aircraft in addition to motor vehicles and also leased it to the group of companies. The plaintiff used the aircraft to transport personnel to its production site, among other things. To this end, it concluded a “Framework Service Agreement for Freelance Aircraft Pilots (RDV)” with the defendant on January 1, 2015; the agreement was terminated by mutual consent in January 2017. The time, duration, type and scope of each assignment were agreed between the parties on a case-by-case basis, whereby the defendant was entitled to reject offers to carry out a flight(Section 1 sentences 4 and 6 RDV). According to the contractual provisions, the defendant was not subject to the plaintiff’s authority to issue instructions and was not bound to the plaintiff in terms of location or time(§ 1 sentence 5 RDV). His duties included the preparation and execution of flights as the responsible pilot as well as their follow-up and documentation, including special incidents(§ 2 sentence 1 RDV). He was obliged to carry out the assignments personally(§ 3 sentence 6 RDV) and was generally remunerated with 300 euros per day after the respective assignment(§ 5 sentences 1 and 5 RDV). He was also permitted to work for third parties(§ 8 RDV). Apart from the aircraft, which was provided with a full tank of fuel, no other work equipment was required.
3
In the status determination procedure, the defendant determined that the defendant was subject to compulsory insurance in the statutory pension insurance scheme (GRV) due to employment with the plaintiff from 1 January 2015 (notices of 15 February 2017; notice of objection of 7 June 2017). The SG overturned the administrative decision and found that the defendant was not in a dependent employment relationship. As a freelancer, the defendant was not subject to the plaintiff’s right to issue instructions during his assignments and was not integrated into the plaintiff’s business. His entrepreneurial risk lay in the irregularity and the uncertain number of monthly flights (court order of 11.8.2021).
4
At the hearing before the LSG, the defendant amended the decision of 15.2.2017 and determined that the defendant was subject to compulsory insurance under the GRV from the first flight assignment for the plaintiff on 15.4.2015. The LSG overturned the court decision on the defendant’s appeal and dismissed the claim. The defendant was subject to compulsory insurance in the GRV in an overall assessment due to employment. The assessment was to be based on the respective individual assignments. The intention of the contracting parties not to establish employment subject to social security contributions was only of indicative significance. The defendant had been integrated into an operational order prescribed by the plaintiff for its business purposes. He had been subject to the plaintiff’s right to issue instructions to a considerable extent with regard to the time, duration, place and type of performance of his work. In this respect, it was not decisive that the plaintiff had not exercised its right to issue instructions through individual instructions during the assignment, but through general stipulations made in advance in the RDV. The defendant was remunerated according to a daily rate and did not bear any entrepreneurial risk. The aircraft had been provided to him free of charge. The RDV did not provide for liability for damage to the aircraft (judgment of 29.9.2022).
5
With the appeal, the plaintiff complains of a violation of § 7 para. 1 SGB IV. The LSG should have taken into account the parties’ free choice of legal form. Due to the mutual agreement on the time and place of performance, there was no unilateral right to issue instructions pursuant to § 106 of the Trade Regulation Act (GewO). The defendant had been able to dispose of his time completely freely. There was no integration into the company in the sense of cooperation with other employees based on the division of labor. The defendant had performed the service owed by him completely on his own. The obligation to provide services in a highly personal capacity did not argue against a freelance service contract. It was true that the defendant’s duties went far beyond the actual flight services and did not merely concern “key points” of the respective order. However, the contractual determination of individual contents of the work performance did not lead to a dependent employment relationship. The provision of beverages to passengers was not the subject of the RDV and thus a further indication of the defendant’s independence. Insofar as the so-called entrepreneurial risk was at all suitable as a delimitation criterion, this consisted of the fact that further individual orders were not placed. The defendant was liable for damages according to §§ 280, 823 BGB. Unlike an employee, he was not subject to a non-competition clause. The overall view of all circumstances, comparable to the earlier decision of the BSG of 28.5.2008(B 12 KR 13/07 R juris), implied a self-employed activity.
6
The plaintiff requests that
the judgment of the Hessian Regional Social Court of September 29, 2022 be set aside and the defendant’s appeal against the court order of the Marburg Social Court of August 11, 2021 be dismissed.
7
The defendant requests that
the plaintiff’s appeal be dismissed.
8
It shares the opinion of the LSG.
9
The defendant has not submitted an application.
II
10
The admissible appeal of the plaintiff is unfounded(§ 170 para. 1 sentence 1 SGG). Upon the defendant’s appeal, the LSG rightly set aside the judgment of the SG that upheld the claim. The contested status determination decision of the defendant of 15.2.2017 in the form of the objection notice of 7.6.2017 and the amendment notice of 29.9.2022 is lawful and does not violate the plaintiff’s rights. The defendant was subject to compulsory insurance in the GRV during his assignments for the plaintiff as an airline pilot.
11
1. The legal basis for issuing the contested status determination notice is § 7a para. 1 sentence 1, para. 2 SGB IV (in the version <as amended by> of the announcement of 12.11.2009, BGBl I 3710). According to this, the defendant decides upon application on the obligation to insure due to employment in the branches of social insurance (BSG judgment of 19.10.2021 B 12 R 1/21 R BSGE 133, 57 = SozR 42400 § 7 No. 60, RdNr 11).
12
With its amendment notice(§ 96 SGG) of 29.9.2022 restricting the temporal scope of the previous administrative decision and regulating the commencement of the insurance obligation from the first flight assignment on 15.4.2015, the defendant recognizably focused on the individual assignments (see BSG judgment of 19.10.2021 B 12 KR 29/19 R BSGE 133, 49 = SozR 42400 § 7 No. 62, RdNr 18). A subsequent limitation of the period of compulsory insurance to the days of employment is possible as a partial withdrawal of the contested decision in this respect during the court proceedings in favor of the plaintiff(§ 44 para. 2 sentence 2 SGB X) without examining any protection of the defendant’s legitimate expectations (cf. § 49 SGB X). The analogous limitation to the actual working hours satisfies the requirements for the certainty of a status determination notice even without naming all specific days (see most recently BSG judgment of 12.12.2023 B 12 R 10/21 R juris RdNr 14 <Augenärztin>, intended for publication in SozR; BSG judgment of 19.10.2021 B 12 R 1/21 R BSGE 133, 57 = SozR 42400 § 7 No. 60, RdNr 19).
13
2. Persons who are employed in return for remuneration are subject to compulsory insurance in the GRV(§ 1 sentence 1 no. 1 SGB VI as amended by the Act on the Promotion of Year-round Employment of 24.4.2006, Federal Law Gazette I 926).
14
Employment is non-self-employed work, in particular in an employment relationship. Indications of employment are an activity in accordance with instructions and integration into the work organization of the employer(§ 7 para. 1 sentence 2 SGB IV as amended by the announcement of 12.11.2009, BGBl I 3710). According to the established case law of the BSG, dependent employment requires that the employee is personally dependent on the employer. In the case of employment in an external company, this is the case if the employee is integrated into the company and is subject to the employer’s right to issue instructions covering the time, duration, place and type of performance. This obligation to follow instructions may be limited, particularly in the case of services of a higher nature, and may be refined to “functionally appropriate participation in the work process”. In contrast, self-employment is primarily characterized by the own entrepreneurial risk, the existence of one’s own business premises, the ability to dispose of one’s own workforce and the essentially free organization of activities and working hours. Whether someone is employed or self-employed depends on which circumstances characterize the overall picture of the work performance and depends on which characteristics predominate (established case law; see BSG judgment of 20.7.2023 B 12 BA 1/23 R juris RdNr 13 f, for publication in BSGE and SozR; BSG judgment of 28.6.2022 B 12 R 3/20 R SozR 42400 § 7 Nr 65 RdNr 11). The distinction between employment and self-employment based on these standards is not to be made in the abstract for certain professions and activities. It is therefore possible for one and the same profession to be exercised either in the form of employment or as a self-employed activity, depending on the specific structure of the contractual basis and actual practice. Abstract, case-by-case statements with regard to certain professions or activities are therefore generally not possible, not even in the sense of a “rule-exception statement” (BSG ruling of 28.6.2022 B 12 R 3/20 R SozR 42400 § 7 No. 65 RdNr 13 mwN <Musikschullehrerin>).
15
This is generally based on the content of the agreements made between the parties, which the administration and the courts must determine in concrete terms. However, the classification as employment or self-employment cannot be determined by the contracting parties with binding effect for social insurance, e.g. by agreeing that they want to be self-employed. This is because the special protective purpose of social insurance precludes the contracting parties alone from deciding on the legal classification of a person as self-employed or employed. Mandatory standards cannot be decided by way of private autonomy. Rather, the actual design and implementation of the contractual relationships is decisive (see BSG judgment of 19.10.2021 B 12 R 10/20 R SozR 42400 § 7 No. 59 RdNr 22 mwN). At most, if the overall assessment of all circumstances indicates both self-employment and dependent employment, the intention of the contracting parties may be of significant indicative importance in individual cases (see BSG judgment of 28.6.2022 B 12 R 3/20 R SozR 42400 § 7 No. 65 RdNr 12 <Musikschullehrerin>; further BSG judgment of 28.5.2008 B 12 KR 13/07 R juris RdNr 16).
16
3. According to these standards and the findings of the LSG, which are not contested with admissible and substantiated complaints and are therefore binding(§ 163 SGG), the indications of dependent employment predominate according to the overall picture.
17
a) The intention of the contracting parties and the designation of the RDV are not of decisive importance in this respect (see 2. above). § Section 611a para. 1 sentence 6 BGB, according to which the designation in the contract is irrelevant if the actual implementation of the contractual relationship shows that it is an employment relationship, does not contradict this. Contrary to the plaintiff’s view derived from this provision, an assessment deviating from the status agreed between the parties does not require that the actual implementation of the contractual relationship differs significantly from the agreed circumstances. It is also true in social law that in the event of divergences between the implementation of the contract and the agreement, the actual practice generally takes precedence over the formal agreement (see BSG judgment of 7.6.2019 B 12 R 6/18 R BSGE 128, 205 = SozR 42400 § 7 No. 44, para. 23). However, it is possible to deviate from the consistent classification of the activity as “freelance work” even without divergent implementation practice. The classification under social security law as a type of employment or self-employed activity requires a legal assessment of the actual content of the agreement, which cannot be disposed of by way of private autonomy (see BSG judgment of 24.10.2023 B 12 R 9/21 R juris RdNr 13, for publication in BSGE and SozR). Contractual clauses, such as the exclusion of continued remuneration in the event of illness, which are intended to waive or avoid any labor, tax and social law regulations that may be linked to the employee or employee status, therefore have no independent significance (see BSG judgment of 18.11.2015 B 12 KR 16/13 R BSGE 120, 99 = SozR 42400 § 7 Nr 25, RdNr 27).
18
b) In the case of contractual arrangements in which, as here, the assumption of individual services is individually agreed on the basis of a framework agreement, in this case the RDV, and no continuing obligation with services on call is established, the question of the insurance obligation must be based solely on the circumstances that exist during the execution of the respective individual orders. The individual flight assignments were agreed individually according to the conditions of the RDV (cf. § 1 sentence 4 RDV). The defendant was expressly entitled to reject offers to carry out a flight(§ 1 sentence 6 RDV). Therefore, only the individual missions performed by the defendant in the period from 15.4.2015 to 31.12.2016, which are documented by invoices, are relevant. Outside of the individual assignments, there is no “remunerated” employment within the meaning of § 7 para. 1 SGB IV that justifies the insurance obligation because the co-invitee had no latent obligation to carry out activities for the claimant and, conversely, the claimant did not have to pay any remuneration (see BSG judgment of 19.10.2021 B 12 R 17/19 R SozR 42400 § 7 no. 63 RdNr 19).
19
c) The existence of dependent employment during the individual assignments is supported by the fact that the defendant was integrated into the processes planned by the plaintiff to achieve its business purpose with the aircraft provided by it as an essential means of operation, without being able to exert any lasting entrepreneurial influence himself.
20
aa) This is not precluded by the fact that the plaintiff had no right to issue instructions to the defendant that were typical of employment. The provision of § 106 sentence 1 in conjunction with § 6 para. 2 GewO, which is applicable to all employees, regulates the employer’s right to issue instructions, i.e. that the employer can determine the content, place and time of the work performance at its reasonable discretion, insofar as these working conditions are not determined by the employment contract, provisions of a works agreement, an applicable collective agreement or statutory provisions. Thus, as the plaintiff points out, the right to issue instructions is generally characterized by unilateral exercise as opposed to mutually agreed contractual content.
21
The RDV regulates the procedure for individual agreements(§ 1 sentence 7 ff RDV ) that the defendant informs his contact person at the plaintiff in writing on which days and at what times he can and would like to accept orders from the plaintiff in the following month. The plaintiff “then informs the freelancer of the orders to be carried out, as a rule at least seven calendar days in advance and as quickly as possible in the event of short-term requirements. By providing the relevant duty roster or specifying the details of the individual assignment in writing by email, the respective individual assignments become binding for both parties.” Due to this procedure, the subject matter of the individual orders formally became the content of mutual agreements, so that there was no longer any room for unilateral instructions. Irrespective of this, the RDV also expressly stipulates that the defendant is not subject to the plaintiff’s authority to issue instructions ( § 1 sentence 5 RDV).
22
However, an obligation to follow instructions, such as Section 611a (1) sentence 3 BGB (introduced by the Act to Amend the Temporary Employment Act and Other Acts of 21 February 2017, BGB I 258), can also result from a detailed legal contract design or actual contract implementation that severely restricts the freedom to provide the service owed (BAG ruling of 1 December 2020 9 AZR 102/20 BAGE 173, 111 para. 33). Even the status of employee, as the LSG points out, cannot be excluded in individual cases by the fact that the employer already includes the few necessary instructions in the contract (BAG loc. cit. para. 37; BAG judgment of 16.7.1997 5 AZR 312/96 BAGE 86, 170, juris para. 22). However, the extent to which the obligation to follow instructions extends in detail according to labor law standards can be left open here. This is because there is no complete correspondence between the concept of employee under labor law and the concept of employee under § 7 SGB IV. According to para. 1 sentence 1 of the provision, employment is non-self-employed work, “in particular in an employment relationship”. It follows from this that, in principle, employment exists if an employment relationship exists, but also that employment can be exercised even if no employment relationship has been established (established case law; cf. e.g. BSG judgment of 24.10.2023 B 12 R 9/21 R juris RdNr 13, for publication in BSGE and SozR).
23
According to social insurance law standards, the personal dependency that characterizes dependent employment can result solely from integration into the company, even without typical dependency on instructions. According to the wording of the provision, the characteristics listedin § 7 para. 1 sentence 2 SGB IVare only “indications” of personal dependency and not conclusive assessment criteria. Being bound by instructions and integration into the company are neither in a hierarchical relationship to each other nor do they always have to be cumulative. Integration does not necessarily go hand in hand with a comprehensive right to issue instructions (see BSG judgment of 4.6.2019 B 12 R 11/18 R BSGE 128, 191 = SozR 42400 § 7 No. 42, RdNr 29 f).
24
This also applies to activities which, as in this case, are associated with particular personal responsibility and professional independence in the performance of tasks. The fact that the defendant had to comply with the legal and official requirements for the activity as an aircraft pilot and for the operation of the aircraft provided on his own responsibility does not yet indicate independent activity. The right to issue instructions is often severely restricted, particularly in the case of highly qualified or specialized personnel (so-called services of a higher nature). Nevertheless, in such cases the service can be externally determined if it is characterized by the order of the company in whose service the work is performed. In such cases, the employee’s obligation to follow instructions is refined “to functionally appropriate, serving participation in the work process” (established case law; e.g. BSG ruling of 4.6.2019 B 12 R 11/18 R BSGE 128, 191 = SozR 42400 § 7 No. 42, RdNr 29; on the classification of chief physicians already BSG ruling of 29.9.1965 2 RU 169/63 BSGE 24, 29 = SozR No. 1 to § 539 aF RVO).
25
bb) Framework agreements, regulatory framework conditions or “inherent circumstances” must also be taken into account in the context of integration (see BSG judgment of 19.10.2021 B 12 R 17/19 R SozR 42400 § 7 No 63 RdNr 30 <outpatient caregiver>BSG judgment of 27.4.2021 B 12 R 16/19 R SozR 42400 § 7 no. 58 RdNr 15 <Ticket inspector>BSG judgment of 28.6.2022 B 12 R 3/20 R SozR 42400 § 7 No. 65 RdNr 18 <Music school teacher>). Such conditions are not necessarily a decisive indication of dependent employment; conversely, dependent employment is not excluded because certain requirements result from the nature of the activity or are inherent to it (see BSG judgment of 27.4.2021 loc. cit. para. 15). For social insurance law, which is not based on private autonomy, it is less important what dependencies and obligations result from, but rather whether and to what extent there is still room for entrepreneurial freedom to shape the activity with corresponding opportunities and risks in individual cases (cf.6.2022 B 12 R 3/20 R SozR 42400 § 7 Nr 65 RdNr 18 <Musikschullehrerin>; cf. on the relationship between framework specifications and individual instructions Bergner, Festschrift für Rainer Schlegel, CH Beck 2024, p 373 f).
26
Unlike in the decision of 28.5.2008(B 12 KR 13/07 R juris RdNr 23), the Senate here therefore also attaches importance to the contractual framework conditions that lead to a reduced autonomy of the pilot for his personal dependency. These determine the prescribed organizational procedure. In particular, the task description(§ 2 RDV) and the obligation to perform(§ 3 RDV) no longer left the defendant any scope for entrepreneurial organization of the activity. The key data of the individual flight orders were ultimately specified by the plaintiff through notification of the “orders to be carried out” and “provision of the corresponding duty roster”. This alone made the individual orders binding for both parties (cf. § 1 RDV). The fact that this was formally a contractual agreement does not alter the fact that the plaintiff determined the individual assignments according to its specific requirements, in particular with regard to the airport of operation, destination and goods or persons to be transported, and that the defendant was also bound to them in terms of time on the working days made available by him. The defendant had to integrate himself into the essentially externally determined processes. Integration does not depend on a local aspect (integration into a fixed place of business) (see BSG judgment of 24.3.2016 B 12 KR 20/14 R SozR 42400 § 7 No. 29 RdNr 23 <Physiotherapist>; BSG judgment of 19.10.2021 B 12 R 17/19 R SozR 42400 § 7 No. 63 RdNr 29 <ambulant caregiver>).
27
Due to the highly personal obligation to perform(§ 3 RDV), the defendant had to make his manpower available for the flight performance and the contractually specified preparatory and follow-up work and not only to effect the transport to a certain location by means of a procedure left to him. The defendant therefore had no freedom to determine the scope of his own labor within the scope of the individual orders. The obligation to provide the service personally is, in principle, a typical characteristic of an employment relationship, even if, according to § 613 sentence 1 BGB (as amended by the announcement of 2.1.2002, BGBl I 42), the person obliged to provide services must only provide the services in person “in case of doubt” (see BSG judgment of 18.11.2015 B 12 KR 16/13 R BSGE 120, 99 = SozR 42400 § 7 No. 25, RdNr 33; BAG judgment of 19.11.1997 5 AZR 653/96 BAGE 87, 129, 137 f = AP Nr 90 zu § 611 BGB Abhängigkeit).
28
In addition to the specified processes, the fact that the defendant exclusively used the plaintiff’s operating resources is of essential importance for the integration in this case (aA LAG Lower Saxony judgment of 20.8.2020 5 Sa 614/20 juris RdNr 78 on the employment relationship of an aircraft pilot). According to the findings of the LSG, the aircraft, which was indispensable for his service, was provided to him free of charge without any usage fee or choice. The fact that the plaintiff itself rented the aircraft from a company in its group of companies does not call into question the allocation of the aircraft as its operating resources (cf. on the allocation of the rescue service operation BSG judgment of 19.10.2021 B 12 KR 29/19 R BSGE 133, 49 = SozR 42400 § 7 No. 62, RdNr 23). The aircraft was provided and operated on behalf of the claimant. The receipts for the operation of the aircraft were also to be submitted to the claimant in the original(§ 2 sentence 4 RDV).
29
Insofar as the plaintiff points out that a division of labor with other personnel did not take place in the flight service, this is not necessary for a service of a singular nature – such as the flight service as an individual pilot for the plaintiff company. The “inherent” nature of the service is not an indication of entrepreneurial freedom. The lack of cooperation with the plaintiff’s personnel is not replaced by the involvement of the defendant’s own employees.
30
cc) Although the aforementioned aspects ultimately only provide a framework for the execution of the flight order, this did not leave the defendant sufficient scope for entrepreneurial opportunities and risks in the execution of the order. In this respect, the LSG did not find any indications of considerable weight in favor of independence that could have outweighed or outweighed the integration of the defendant.
31
The defendant had extensive freedom in the organization and distribution of his working hours. Unlike in a typical employment relationship, he did not agree to be permanently on call, within which the plaintiff could have disposed of him by exercising a right of direction. The determination of the insurance obligation due to employment therefore does not cover the entire term of the framework agreement, but only the individual orders (see above). Considerable weight is only attached to a large degree of freedom in terms of working hours if its limits are not unilaterally based on the framework set by the needs of the client (see BSG judgment of 18.11.2015 B 12 KR 16/13 R BSGE 120, 99= SozR 42400 § 7 No. 25, RdNr 29). However, when carrying out the individual flight order, the defendant had to adhere to the content of the order, also in terms of time. Moreover, the possibility of concluding a flight order only existed when the plaintiff needed it. Social security law does not only stipulate compulsory insurance for permanent employment for an indefinite period. Rather, if – as in this case – the limits of insignificance are exceeded, temporary work assignments are also subject to social insurance and contribution obligations. Social insurance law also provides for special regulations for non-self-employed persons, without generally stipulating exemption from insurance. Additional self-employment as a main occupation is only relevant for health and long-term care insurance(Section 5 para. 5 SGB V, Section 20 para. 1 sentence 1 SGB XI) (BSG ruling of 7.6.2019 B 12 R 6/18 R BSGE 128, 205 = SozR 42400 Section 7 no. 44, marginal no. 32).
32
The remuneration was paid as a lump sum in the amount of a daily rate(Section 5 RDV). The defendant did not receive any profit sharing or remuneration from transportation contracts with individual passengers. It had no possibility of influencing the turnover from the individual flight orders through its own organization or provision of operating resources or employees. The hospitality with beverages not provided for in the RDV, but claimed, does not lead to a business turnover, since according to the findings of the LSG, the corresponding purchase receipts were submitted to the plaintiff.
33
There was no significant entrepreneurial risk. In this respect, the decisive factor is whether own capital or own labor is used with the risk of loss, i.e. the success of the use of material or personal resources is uncertain (established case law; e.g. BSG judgment of 7.6.2019 B 12 KR 8/18 R juris RdNr 27 mwN; BSG judgment of 28.9.2011 B 12 R 17/09 R juris RdNr 25). The Senate does not see any reason to deviate from this criterion. In view of the fixed remuneration, the defendant did not use his labor with the risk of uncertain success. The (general) risk of not being able to utilize one’s own labor at times outside of the completion of individual orders does not result in an entrepreneurial risk with regard to the individual assignments (see BSG judgment of 18.11.2015 B 12 KR 16/13 R BSGE 120, 99 = SozR 42400 § 7 No. 25, RdNr 36). The costs associated with the maintenance of the flight authorization (e.g. aeromedical certificates) serve the purpose of being able to fly an aircraft professionally and to use the flight authorization for other missions. In contrast, the Senate assessed the entrepreneurial risk differently in its decision of 28.5.2008(B 12 KR 13/07 R juris RdNr 27), because in the facts of the case there, the flights had essentially served to fulfill the requirements for maintaining the flight licenses and the freelancers had borne the risk of a (permanent) loss of their additional income due to the expiry of their flight licenses. On the other hand, the burden of these risks was offset by greater independence in the organization and determination of the scope of the individual assignment.
34
The fact that the defendant was also allowed to and did work for other clients does not indicate that he was self-employed within the scope of the individual orders. Even if a non-competition clause is generally typical for employees, its absence here is not an indication that the defendant is self-employed (see also BSG judgment of 31.3.2017 B 12 R 7/15 R BSGE 123, 50 = SozR 42400 § 7 no. 30, para. 49). The Senate has ruled that working for other clients can be an indication of very considerable freedom of disposition with regard to the activity to be assessed if it takes place to a relevant extent or even as a main focus, because it then considerably restricts the contractor’s availability in terms of time (BSG ruling of 4.9.2018 B 12 KR 11/17 R BSGE 126, 235 = SozR 42400 § 7a No. 10, RdNr 23). However, the contractor’s freedom of disposition is already taken into account here insofar as the assessment is based on the respective individual order (see above) (see BSG judgment of 19.10. 2021 B 12 R 1/21 R BSGE 133, 57 = SozR 42400 § 7 No. 60, RdNr 30). (Part-time) employees may also have several employment relationships with different employees in the same sector at the same time (see BSG judgment of 31.3.2017 B 12 R 7/15 R BSGE 123, 50 = SozR 42400 § 7 No. 30, margin no. 49).
35
The defendant’s personal risk of liability for damages caused by culpable conduct also does not constitute entrepreneurial risk (see BSG judgment of 23.2.2021 B 12 R 15/19 R BSGE 131, 266 = SozR 42400 § 7 No. 54 RdNr 29 mwN). The defendant was not subject to strict liability as an aircraft operator pursuant to Section 33 of the Air Traffic Act.
36
4. Exemption from insurance due to marginal employment(§ 8 para. 1 SGB IV as amended by the Act on Changes in the Area of Marginal Employment of 5.12.2012, Federal Law Gazette I 2474) does not apply. The activity was not limited in time to a maximum of two months or 50 working days within a calendar year according to its nature or in advance by contract (loc. cit. no. 2). According to the findings of the LSG, it is not apparent that the income of the defendant from his work for the plaintiff did not regularly exceed the marginal earnings threshold (loc. cit. no. 1).
37
5. The decision on costs is based on Section 197a (1) sentence 1 sub-sentence 3 SGG in conjunction with Section 154 (2) and Section 162 (3) VwGO.
38
6. The determination of the amount in dispute follows from Section 197a (1) sentence 1 sub-sentence 1 SGG in conjunction with Section 52 (1) and (2), Section 47 (1) sentence 1 in conjunction with Section 63 (2) sentence 1 GKG and is determined according to the standard amount in dispute in the amount of EUR 5,000.