Moonlighting

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Undeclared work is the execution of services or works in violation of tax law , in violation of social security law, bypassing the notification obligations to the authorities and social institutions or without registering a business or registering in the trade register, although a trade or craft is exercised. Undeclared work is part of the illegal black economy .

Undeclared work is usually agreed orally and the remuneration is paid in cash. Estimates of the share of undeclared work in the total gross domestic product (GDP) in Western European economies vary between 0.5% and 20%. Undeclared work does not include assistance from relatives or partners, as well as neighborly help or favors if they are not aimed at making a profit in the long term.

History and concept

The term undeclared work comes from the trade and was originally limited to activities for which the person performing the work did not have the legally prescribed requirements (e.g. the master's examination).

In the Etymological Dictionary of the German language , blacking is assigned to a term from the Rotwelschen (18th century, black / heavy: "to do something at night", generally "to do / buy illegally"). “Black” is therefore etymologically related to “dirty”. The terms “illegal work” or “someone. blackening ”can be traced back to the redwish“ blackening ”=“ smuggling ”=“ doing something at night ”.

Germany

Legal consequences

civil right

The Federal Court of Justice had repeatedly to decide on the legal consequences of undeclared work. In a ruling from August 2013 it was about a contract for work with a craftsman, "which should be paid in cash without an invoice and without paying sales tax." The court ruled that such an agreement would in any case lead to the ineffectiveness of the contract, "if the entrepreneur intentionally violates this and the customer knows the violation of the entrepreneur and consciously uses it for his own advantage. ”The undeclared work law from 2004 should be understood as a legal prohibition of such agreements within the meaning of § 134 BGB . In the absence of a contractual basis, the BGH therefore rejected a claim for the removal of material defects from the warranty . In the case of poorly executed undeclared work , the client cannot demand any rework . At the time, the BGH left open whether an affected client could get part of his money back by way of enrichment compensation. Ultimately, this question must be clarified via the lower courts.

In April 2014, the Federal Court of Justice ruled in a further ruling that illegal workers were not entitled to payment for their work. In the case at the time, both a wage plus sales tax and an additional amount for which no invoice was to be made had been agreed for an electrical installation. The work has been carried out, but the wages have only been partially paid. The craftsman then sued for the outstanding wages. The court found, “Both the plaintiff and the defendant have deliberately violated Section 1 (2) No. 2 SchwarzArbG by agreeing that the cash payment of € 5,000 in excess of the agreed written wages would not be invoiced and no sales tax would be paid should be. The entire contract for work is therefore void due to a violation of a legal prohibition, so that there is no contractual wage claim. ”The claim for payment could not be based on the fact that the customer of the work had been enriched by the service provided . In this case, according to § 817 sentence 2 BGB, the return of the value replacement is excluded because the underlying transaction had violated a legal prohibition . The Undeclared Labor Act not only wants to prohibit such agreements, but also the performance of services based on the agreements. This legal mandate is to be strictly implemented. Therefore, the result does not violate the principle of good faith . The Federal Court of Justice has thus given up its earlier view, according to which the contractor can also demand his wages in the case of illegal work, after the illegal employment law came into force.

The BGH confirmed its case law with a ruling of June 11, 2015, according to which the customer has no right to repayment in the case of undeclared work if the contractor's work is unsatisfactory. If the customer and the company agree within the framework of a contract for work that the work owed is to be carried out without the payment of the tax duties owed (illicit work within the meaning of Section 1 (2) No. SchwarzArbG), the contract is void according to the BGH. The contract is also void if the black money agreement is made retrospectively after the contract has been concluded.

Criminal law

Employers who do not pay their employees' social security contributions to the collection point are liable to prosecution under Section 266a of the Criminal Code. Special regulations on fines and penalties, in particular on the illegal employment of foreigners, can also be found in Section 3 of the SchwarzArbG .

Undeclared workers commit fraudulent benefits ( Section 263 StGB) if they wrongly receive social benefits by failing to report their income from undeclared work to the service provider.

Tax classification of the illegal worker

Whether someone who does undeclared work is self-employed (trader, self-employed) or not self-employed ( employee ) depends on criteria that are independently defined in the legal areas concerned (tax, labor, social security law). If the illegal worker is an employee, only his employer has obligations under criminal law. In particular, this is the duty to withhold, register and pay taxes and social security contributions. The employee is then (jointly) responsible under criminal law if he actively participates in the evasion of taxes. It looks different with the self-employed. They are obliged to declare the various taxes (income tax, possibly trade tax and sales tax) themselves. They must therefore register the start of their activity either with the trade authority ( § 14 GewO ) or with the tax office ( § 138 AO ). If you provide false information to the tax authorities or do not submit any tax returns or declarations, although you are obliged to do so, you can be prosecuted for tax evasion ( Section 370 AO).

Scope of undeclared work

According to an estimate by the Federal Ministry of Finance in 2006, the shadow economy (which includes all illegal economic activities, including undeclared work) damages the Federal Republic by 70 billion euros annually. The shadow economy is 15% of the total economic output, i. e.g .: 345 billion euros. This is white-collar crime , against which, among other things, the "financial control of illegal work" (see below) will in the future proceed with 7,000 employees. In 2019, the loss in sales was estimated at 300 billion euros. In the construction industry alone, up to 126 billion euros are generated annually.

The estimates - whose methodological imprecision (estimation of the shadow economy using cash in circulation) is also conceded by the authors themselves - come from the economist Friedrich Schneider (University of Linz) and the Institute for Applied Economic Research (IAW). According to Schneider, however, it is not clear whether illegal work costs jobs overall or even creates some. According to Schneider’s current studies, undeclared work should fall to 342.4 billion euros in 2012 and thus account for 13.3% of legal GDP.

The Rockwool Foundation in Copenhagen estimates that within the European Union the share of undeclared work in GDP is between 1.2% in Great Britain and 4.1% in Germany , if the collectively agreed wages in the legal sector are used as a comparison. If, on the other hand, the real wages paid are used as a basis, this proportion drops to 0.6% in the UK and 1.3% in Germany. The amount of illegal work in Germany would be less than 30 billion euros.

Combating undeclared work

In Germany, the federal customs administration and local authorities are responsible for combating illegal employment . This is also reflected in Section 2 (1a) SchwarzArbG.

Instruments in the fight against undeclared work:

  • Press campaigns to educate the population
  • Reduction of bureaucratic hurdles in the establishment and administration of employment relationships, for example
    • Simplified reporting procedures for employment relationships, such as the household check procedure for domestic help in private households or
    • Improved information on legal obligations when establishing employment relationships on the websites of Customs , Minijob-Zentrale and Agentur für Arbeit
  • Reduction of financial hurdles in employment relationships, such as
    • Reduction of tax rates for low incomes,
    • Increase in the tax deductibility of costs (e.g. for household-related employment or services )
    • Flat rate of social security contributions and taxes for marginal employment Mini job
  • Verification of compliance with the legal provisions when employing employees and, if necessary, criminal prosecution in the event of violations
  • Monitoring and control of job offers and other advertisements in the press and on the Internet with regard to information relevant to undeclared work
  • On-site controls and audits (§ § 2  ff. SchwarzArbG) by the financial control of undeclared work (FKS) and controls and audits by the responsible municipal authorities.

The primary responsibility of customs relating to undeclared work in the context of benefit fraud , evasion of social security contributions, tax evasion , violation of various notification obligations to the social security authority, as well as illegal employment and human trafficking for the purpose of exploitation of labor, as well as the control of minimum working conditions after the posting of workers.

The original responsibility of the authorities responsible under state law relates to illegal employment violations due to illegal trade, due to missing business registration or missing travel business card.

The customs administration and the other authorities involved in the fight against illegal employment are obliged to forward reports and information about any violations found to these authorities directly in accordance with Section 6 (1) sentence 1 of the SchwarzArbG.

Statistical data on the fight against undeclared work and illegal employment

2000 2001 2002 2003 2004 2006 2007 2008 2009
Personal verification at the workplace 92,000 109,000 77,380 79,269 264,500 423.175 477.035 481.996 472,542
Examination of employers 35,000 18,500 26,026 32,572 104,965 83,258 62,256 46,058 51,600
Completion of criminal investigations 7,700 9,200 8,739 9,837 56,900 91,820 117,441 106,960 104.003
Conclusion of investigative proceedings for administrative offenses 3,300 2,800 1,734 1,233 49,926 54,087 72,969 63.274 61,531
- in € million - -
Sum of the fines 8.0 10.3 5.3 5.1 32.8 46.4 51.9 56.7 55.3
Value of the assets secured for asset recovery 9.6 21.3 21.6 34.0 43.1
Amount of damage in the context of criminal and regulatory fines investigations 124.0 179.7 191.2 348.1 475.6 603.6 561.8 549.7 624.6
Sum of the fines (including compensation) 2.2 2.5 2.9 3.6 8.9 19.8 25.4 33.9 33.7
- in years -
Sum of the prison sentences obtained 96 200 227 305 472 1,123 1,398 1,556 1,813

The fight against undeclared work in Germany is only moderately successful, as documented, for example, in the statistics of the financial control of undeclared work (FKS). 40,000 controls are compared to just 72 arrests. This corresponds to 0.18% or 1.8 ‰. However, there is usually no reason for arrest for the violations found; this is only relevant in a few cases in the area of ​​illegal employment of foreigners. A promising economic policy to combat such shadow economy activities will, however, have to say goodbye to the fight against the symptoms and start at the causes: Many citizens believe that this is the increasing pressure of taxes and duties on the labor factor and the increasing regulation in the official world of work be. Others argue that the current legal system protects undeclared workers by promoting the common interest of the client and the contractor. This could easily be done away with by treating the two parties differently (impunity for one party in connection with private law recovery or wage rights). Then no more controls by the state would be necessary. Higher penalties alone only combat the symptoms of the shadow economy, can be expensive and time-consuming and do not lead to the desired success.

Combat by changing social security cash flows

In particular from the ranks of the FDP as well as the Mittelstands-Union and MIT of the CDU / CSU , the payout of the employer's share for social security to the employee is required to combat illegal work . The proponents argue that the incentive for undeclared work would largely be lost, since the employee would find out his actual gross wage and the difference to the companies' accounting rates would decrease. Corresponding demands have so far not been able to prevail.

Critical consideration of the rights of the customs administration

Paragraph 4 of the SchwarzArbG regulates that the authorities of the customs administration and, together with the customs administration, also the bodies that support them, are authorized to enter business premises and properties and to examine business documents and receipts there. The authority to check business documents and receipts is only available to customs. The agencies supporting customs cannot exercise this power independently, but only together with the customs administration. These powers are also not required for the municipal authorities, as they have their own access standards, e.g. B. from § 29 GewO .

The targeted and purposeful search by state organs for persons or things or to determine a situation is characteristic of searches within the meaning of Article 13 (2) of the Basic Law . This is also one of the tasks of the customs administration in the context of preliminary investigations. For this, a judicial decision according to § 102 , § 103 StPO is required. In rare cases, in the event of “imminent danger”, a search can also be initiated by the customs officer in his function as “investigator of the public prosecutor's office”.

Critical consideration of the duty to cooperate

Anyone who "... does not participate in an examination" ( Section 8 (2) SchwarzArbG) is an administrative offense . If there is an initial suspicion of a criminal act, the customs administration is obliged to initiate a corresponding investigation. There is no obligation for the accused to cooperate in such a preliminary investigation (nemo tenetur se ipsum accusare - no one may be forced to testify against himself). Nobody should be forced to use evidence against themselves. The burden of proof for the correctness of the accusation rests not with the accused, but with the investigative authorities. You have the obligation to investigate the facts with admissible means, regardless of whether and how the accused defends himself.

Competence of the state authorities

State authorities check whether there are violations due to illegal trade, due to a lack of business registration or a missing travel trade card. The customs administration passes on information about such violations to these authorities.

Austria

In Austria, the term of the black economy botch used (which is also used for a poor job, Easter. Also botch ). The relevant definition in this context is “botch is the work of a professional, avoiding taxes”.

In order to combat illegal work and illegal employment, the KIAB department (“Control of illegal employee employment”) at the Federal Ministry of Finance was set up in Austria . Until December 31, 2006, this unit was part of the Austrian customs administration. From January 1, 2007, the KIAB was an independent department (team) at the tax offices. Since January 1, 2011, the KIAB has become the financial police . In the interests of the labor market and Austria as a business location, the preventive work of the KIAB is intended to largely prevent unfair competition as a result of competitive advantages through illegal work and social fraud . This serves to secure the wage and working conditions of domestic and integrated foreign workers, especially with regard to the development of the Austrian labor market.

Switzerland

In Switzerland, the term illegal work is understood differently depending on the context. In the strict legal sense, undeclared work is working for a third party against wages if, on the one hand, the work performance of the main employer suffers as a result (e.g. additional night work, which causes overtiredness on the following day) or if the main employer is impaired by the work for the third party (Art. 321a Para. 3 OR). A person also works black if he is gainfully employed without being registered with the social security, tax administration and / or immigration authorities.

See also

literature

  • Martin Meissnitzer: Social fraud, illegal work, shadow economy (= series of publications on criminal sciences in theory and practice , volume 5). Verlag für Polizeiwissenschaft, Frankfurt am Main 2013, ISBN 978-3-86676-329-6 (Zugl .: Diss., Univ. Vienna, 2012).
  • Bernd Josef Fehn (Hrsg.): Undeclared Labor Act. Nomos, Baden-Baden 2006, ISBN 3-8329-0991-5 (commentary).
  • Friedrich Schneider, Helmut Badekow: A heart for illegal workers. Why the shadow economy increases our prosperity. Econ, Berlin 2006, ISBN 3-430-20008-3 .

Web links

Wiktionary: Undeclared work  - explanations of meanings, word origins, synonyms, translations

General:

Germany:

Austria:

Switzerland:

Individual evidence

  1. ↑ In Germany: Section 1 Paragraphs 2 and 3 of the Act on Combating Illicit Work and Illegal Employment.
  2. ↑ Kluge: Etymological Dictionary. P. 832.
  3. ↑ Federal Court of Justice: No claims for defects in work performed in illegal work . Press release No. 134/2013 of August 1, 2013 on the judgment of August 1, 2013 - VII ZR 6/13 = NJW 2013, 3167; Retrieved April 16, 2014.
  4. ↑ Federal Court of Justice: Illicit work is not paid . Press release No. 62/2014 of April 10, 2014 on the judgment of April 10, 2014 - VII ZR 241/13; Retrieved April 16, 2014.
  5. ↑ Federal Court of Justice: illegal workers are not entitled to payment . Tagesspiegel.de (dpa).
  6. ^ Franziska Semper, Constantin Baron van Lijnden : No payment for illegal work. Those who oppose the law are not protected by it . In: Legal Tribune Online. April 11, 2014 (on the judgments: BGH, May 31, 1990 - VII ZR 336/89; May 5, 1992 - X ZR 134/90); Retrieved April 17, 2014.
  7. ↑ Tim Schlun: BGH: The purchaser has no right to repayment in the case of illegal work. June 23, 2015, accessed July 16, 2015 .
  8. ^ Judgment of the Higher Regional Court Stuttgart of November 10, 2015, 10 U 14/15, NJW-Spezial 2016, 76
  9. ^ Frankfurter Allgemeine Zeitung , April 13, 2006
  10. ↑ Michael Gassmann: Illicit work: 300 billion euros in damage to the economy . January 11, 2019 ( welt.de [accessed November 23, 2019]).
  11. ↑ tagesschau.de: Undeclared work on the building site disguised with bogus bills. Accessed January 21, 2020 .
  12. ↑ Focus online
  13. ↑ Combating undeclared work and illegal employment ( Memento from January 30, 2011 in the Internet Archive )
  14. ↑ u. a. BVerfGE 75, 318 mwN; BVerwG judgment of June 7, 2006, Az. 4 B 36.06.