HR/Operations Berater on freelance basis?

Frage

I am currently unemployed, but may have the opportunity to help a foreign fitness company set-up a GmbH in Germany. There is no official position - no fixed duration of the project - there is no contract. We would make an agreement to pay me per day until the business is set-up and then talk about a possible employment contract. My question: Can I be a HR/Operations Berater on a freelance basis without worrying about “Scheinselbständigkeit”? Is there a limit for how long I can work for this company exclusively?

Antwort

Thank you for your inquiry and your interest in setting up a business in Germany. www.make-it-in-germany.com provides international professionals with information on working and living in Germany.

In Germany, there are two ways of setting up a business: You are either self-employed (“Gewerbetreibender”), or you are a freelancer (“Freiberufler”). You do not get a choice in this matter - it depends on your profession. Being self-employed or a freelancer makes a difference with regard to certain formalities and has an impact on your company’s legal structure.

In Germany, numerous professions are known as “freelancer” (“Freie Berufe”). If you set up a business in one of these professions, you usually work as a Freiberufler. These include:

medical occupations, e.g. as a doctor
advisory occupations in law, tax or economics
technical or scientific occupations, e.g. as an engineer
occupations concerned with the transfer of information and creative occupations, e.g. as an interpreter
pedagogical occupations, e.g. as a nursery nurse

An overview of the liberal professions is available on the Startup Portal. Please be advised that some professions can only be allocated to the liberal professions following a case-by-case analysis. Your local tax office will decide whether your profession is considered “freiberuflich” or “gewerblich”, once you register your business at the latest four weeks after you started your activities. Bear in mind that for some professions, you will need to provide evidence of certain qualifications and vocational credentials.

Please note the following information regarding your residential status, if you do not have an indefinite residence title (“settlement permit”) in Germany.

If you are a citizen of the European Union, Liechtenstein, Iceland, Norway or Switzerland, you are generally free to start up your own business in Germany.

If you are a citizen of a third countrry, in order to set up a business in Germany, you will usually need a residence permit for the purpose of self-employment (“Aufenthaltserlaubnis zur Ausübung einer selbständigen Tätigkeit”).

Therefore, you will need to clarify, if your current residence status enables you to start a business in Germany. We recommend you to contact your foreigners’ authority (“Ausländerbehörde”). For a first personal advice according your residence status you may also contact the “Hotline Working and Living in Germany” under the telephone number +49 30 1815 – 1111. The service is provided in German and English and is free of charge.

Besides, there are many public information centres, which will advise you as you set up your own business. On the Startup Portal, under “advice and information”, you will find the contact information of regional and national information centres for entrepreneurs with a migrant background. A general contact list is available on the Startup Portal. You can also get in touch with “Berlin - Partner für Wirtschaft und Technologie” to learn more about starting up a business and funding in Berlin.

Reference: Aiste Schiwy
Projekt „Make it in Germany“
Institut der deutschen Wirtschaft Köln e.V.
September 2019

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