Non-agreement foreign countries

Countries not subject to EC law and with which Germany has not concluded social security agreements are referred to as non-agreement foreign countries. The majority of countries worldwide are non-agreement foreign countries. A list of agreement countries can be found here: Übersicht bilaterale Abkommen (overview of bilateral agreements- only available in German).

If an employed artist works temporarily in such a country on the basis of a German employment relationship, German social security law may continue to apply in all areas of social security under certain circumstances.

This is the case for employed artists if

• the assignment is performed on behalf of the employer in Germany and is limited in terms of duration or the nature of the work,

• the employer in Germany determines the type, place, time and manner of the work performed in the other country,

• the artist's claim to remuneration under employment law continues to pertain exclusively to the employer in Germany, and

• the employer does not pass on the costs to an employer abroad.

The term "Ausstrahlung" (short-term posting abroad) (Section 4 SGB IV- only available in German) is used to describe assignments abroad that meet these requirements.

Self-employed artists may also be considered to be participating in a short-term posting abroad pursuant to Section 4 SGB IV if

• the assignment in a non-agreement foreign country is contractually limited in terms of duration or the nature of the work,

• it is a similar activity to the activity in which they engage in Germany and

• the self-employed individual fulfils the requirements (e.g. maintenance of office space, payment of taxes, proof of a VAT number) necessary for carrying out the activity at home (in the previous country of employment) at all times so as to be able to continue the activity upon their return.

However, in the case of non-agreement foreign countries, an assessment of a specific case in Germany in terms of social security law does NOT have any effect on any social security obligation that may exist in the country of employment in individual or all areas of social security. The decision lies with the competent authority in the respective country. In such cases, the individual may be subject to double insurance in some or all areas of social security.
Tax advisors or the client, contractual partner, etc. in the country of assignment can provide pertinent information in this regard.

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Before the start of the foreign assignment, the employer must check whether the assignment meets conditions for a short-term posting as part of its reporting and contribution obligations. If in doubt, the employer can request that the responsible collection office (usually the health insurance fund) determine whether a specific assignment qualifies as a short-term posting.

Self-employed artists must also request this information from the respective competent collection office, usually their health insurance fund. This is also the case if someone has private health insurance coverage but the statutory health insurance fund collects pension and unemployment insurance contributions.
In this case, the self-employed individual must check whether they are subject to insurance obligations in the foreign country. Tax advisors or the client, contractual partner, etc. in the country of assignment can provide pertinent information in this regard.
 

Submitting an application

This template (pdf, download- only available in German), which is an annex to the "Gemeinsame Verlautbarung zur versicherungsrechtlichen Beurteilung entsandter Arbeitnehmer" (Joint Statement on the Assessment of Posted Workers under Insurance Law) of 18 March 2020 can be used for submitting a corresponding inquiry to the health insurance fund.
An electronic application and certification procedure pursuant to Section 106 SGB IV is not yet available. Until further notice, the fund-specific questionnaires or, in the absence of such questionnaires, the questionnaire (template, pdf, download- only available in German), published as an annex to the "Gemeinsame Verlautbarung" (Joint Statement) (which is identical in content) should be used for verification by the competent collection office.

Note: Since neither the health insurance fund nor the pension insurance fund acts as the collection office for accident insurance contributions, the accident insurance fund must conduct its own check if necessary.

Consequence: As temporary assignment in Kenya qualifies as a short-term posting, the German legal provisions continue to apply to all employees for all areas of social security.
The employer is responsible for verifying this (self-employed individuals are responsible for their own verification). In this case, the collection office (usually the health insurance fund) can be asked to check and issue a notice.
The collection office cannot make a decision on behalf of the accident insurance fund. In case of doubt, the accident insurance fund must be contacted separately.

However: In the absence of a supranational agreement, a short-term posting cannot prevent possible double insurance in the country of employment. The country of employment is responsible for conducting its own check. In the example above, competent local representatives (e.g. tax advisors) should determine the insurance and contribution obligations for any local social security areas.

Consequence: The regulations set forth in Section 4 SGB IV (only available in German) apply to the areas of long-term care and unemployment insurance not covered by the agreement. Accordingly, social security coverage in these areas is maintained if the ballet dancer goes to Tunisia on behalf of the German theatre and if the cost for this period is not passed on to the Tunisian theatre.
If these conditions are met, the German legal provisions continue to apply in these areas. Otherwise, the Tunisian legal provisions apply, since no exemption can be granted for these areas under the agreement.

However: even if the German legal provisions continue to apply to these areas, it cannot be ensured that a social security obligation does not also arise in Tunisia (double insurance). This decision rests with the Tunisian authorities.

If insurance is required in Tunisia, competent local representatives (e.g. tax advisors) can check whether there is a legal obligation to obtain coverage and pay contributions for any local areas of social security.

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Just as artists can be posted to non-agreement foreign countries, employed and self-employed artists from non-agreement foreign countries may also undertake activities in Germany on a temporary basis. A legal regulation known as "Einstrahlung" (short-term posting from abroad) has been established in German legislation (Section 5 SGB IV- only available in German) to cater for such cases.

Under the same conditions whereby the German legal regulations continue to apply in the case of a temporary assignment in a non-agreement foreign country, there is no insurance obligation in Germany in any area of social security for an individual undertaking a temporary posting in Germany. This also means that an artist cannot be covered by statutory insurance in any area of social security, even if this is desired.

Requirements for employed artists:

• the assignment is performed on behalf of the employer in the posting country and is limited in terms of duration or nature,

• the employer in the posting country determines the type, place, time, and manner of the work,

• the artist's claim to remuneration under employment law continues to pertain exclusively to the employer in the posting country, and

• the employer does not pass on the costs to an employer in Germany.

Requirements for self-employed artists:

• the assignment in Germany is contractually limited in terms of duration or nature,

• it is a similar activity to the activity in which they engage in their country of residence, and

• the self-employed individual fulfils the requirements (e.g. maintenance of office space, payment of taxes, proof of a VAT number) necessary for carrying out the activity at home (in the previous country of employment) at all times so as to be able to continue the activity upon their return.

Consequence: The musician is not subject to social security contributions in Germany in any branch of the social security system. The event organiser can request that a corresponding check be carried out by the collecting office in Germany.
 

Artists' social security contributions

The decision as to which law applies to an artist is not tied to an exemption from the obligation to pay artists' social security contributions in accordance with the Artists' Social Insurance Act (KSVG). The contributions payable under the KSVG are not considered a social security contribution from a legal standpoint, but rather constitute an assessment for self-employed artists who receive fees for services or works provided in Germany. They are payable whenever an artist is considered a self-employed artist under German law, regardless of whether they are considered an employee or self-employed in their home country.
Since the liability for contributions increases costs for clients, they should have the KSK check in good time whether they have to pay artists' social security contributions (KSA).

Information from the KSK on artists' social security contributions (only available in German); see also the Overview of fact sheets for individual areas (only available in German).

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