Unreported employment
Undeclared work is in the "Law to combat undeclared work and illegal employment " ( SchwarzArbG ) of 23 July 2004 as follows:
" Exercise of service or Services:
- In violation of tax law,
- In breach of social security law,
- Bypassing the notification obligation to the Federal Employment Agency, makers of basic security, social services and / or
- Without business registration or entry in the trades, although a trade / craft is exercised. "
The contracts are usually concluded orally and paid the consideration in cash. Fluctuate estimates of the amount of black labor in the total gross domestic product ( GDP) in Western European economies between 0.5 % and 20%.
Undeclared work is a part of the shadow economy, the media, but both terms are often used interchangeably.
No moonlighting is to provide relief by relatives or partners and neighborly help or favors if they are not sustainable -for-profit.
- 4.1 Controversial extent
- 4.2 combating undeclared work
History
The term illegal work comes from the craft and was originally limited to activities for which the performer does not have the statutory requirements (eg: master's certificate ) decreed.
In the Etymological dictionary of the German language is black, a term from the Rotwelschen (18th century, black / Schwerzen ): " sth at night do," " do / buy illegal" to written general.
Black " thus depends etymologically with " dirty ". The terms" moonlighting "or" someone. blacken " can be applied to the rotwelsche " black "=" smuggle "=" something to do at night, " attributed ( Kluge; Etymological Dictionary p. 832).
Germany
Legal consequences
Black can work according to German law, both civil and criminal or public law (especially administrative ) have consequences. So the SchwarzArbG for example, contains prohibitions within the meaning of § 134 BGB. Special fines and penalties can be found in Section 3 of the SchwarzArbG.
As far as only the executive contractor against the black labor law violates, the contracting entities may neither know nor need to know a work contract for works despite violation of § 134 BGB of the Federal Court of Justice is effective. The black working business entrepreneur is therefore committed to ensuring. However, both parties know the breach of the Black Labour Code, the contract is acc. § 134 BGB void. Financial compensation will then take place only after enrichment law. § It should be noted S.2 BGB 817.
The Federal Court confirmed in a judgment dated 1 August 2013 ( Reference: VII ZR 6/13) this scheme ( the client may at moonlighting poorly executed no repair request ). Whether an affected client can retrieve a portion of his money in the way of enrichment compensation had the Supreme Court open. This question must ultimately be resolved through the lower courts.
Tax Classification of the Black worker
Whether someone who is moonlighting as defined in the SchwarzArbG (§ 1) performed independently ( trader, self employed ) or not self-employed ( workers ) depends on criteria specified in the relevant jurisdictions (tax, labor and social security law ) defined independently are. Typically, comes the question of whether someone incorporated an activity and subject to directives exerts crucial. If the black workers workers, has only reinforced his employer criminally duties. These are in particular the obligation to withhold taxes and social security contributions, to register and pay. The worker then meets a criminal (joint) responsibility if he actively participates in the evasion of taxes. The situation is different for self-employed. These are even obliged to explain the various taxes (income tax, any business tax and VAT). The beginning of its activity, therefore, must be either in the trade authority (§ 14 fabric trim ) or log on to the tax office ( § 138 Tax Code ). Make it to the tax authorities false information or give them any tax returns or statements, even though they are obliged to do so, they can be prosecuted for tax evasion ( § 370 Tax Code ).
Benefit fraud
The black worker commits a so-called benefit fraud when he refers to social injustice by not explaining his income from moonlighting. This is punishable under the Criminal Code and massive falls within the jurisdiction of the public prosecutor.
Controversial extent
According to estimates of the Ministry of Finance from 2006, the shadow economy harms ( includes all illegal economic activities, including moonlighting ), the Federal Republic annually to 70 billion euros. The shadow economy lies at 15 % of total economic output, namely: 345 billion euros. That is economic crime, the future preceding " Financial Control " (see below) with 7,000 employees against, among others. The estimates - which methodically induced blurring (estimate of the shadow economy on currency in circulation) are also given by the authors themselves - provided by the economist Friedrich Schneider (University of Linz ) and the Institute for Applied Economic Research ( IAW). According to Schneider, it was not clear, however, whether moonlighting total would cost jobs or even what make it. According to recent studies Schneiders undeclared work in 2012 will fall to 342.4 billion euros 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 the GDP from 1.2 % in the UK and 4.1% in Germany is, if the negotiated wages in the legal sector as a comparison are applied. Assuming, however, the real wages paid as a basis, this proportion decreased to 0.6 % in the UK and 1.3% in Germany. The extent of undeclared work in Germany would thus under 30 billion euros.
Tackling undeclared work
For the fight against undeclared work, the Federal Customs Administration and the competent local authorities are responsible in Germany. Unlike often portrayed, the Federal Customs Administration is therefore not only supported by the local authorities, but the undeclared work is being fought equally by both organizations. This has also found its expression in § 2 paragraph 1a SchwarzArbG. There are also differences in the extent of the examination papers of the customs administration and the competent local authorities.
The following instruments are used in the fight against undeclared work are used:
- Press campaigns to educate the population
- Removal of bureaucratic hurdles in the establishment and administration of employment, for example, simplified reporting procedures of employment, in the budget check process for domestic workers in private households or
- Improved information about legal obligations regarding the justification of employment on the website of customs, Minijob Centre and Employment Agency
- Reduction in tax rates for low income,
- Increase in the tax deductibility of the costs ( for example, in household employment or services)
- Flat rate of social security contributions and taxes in marginal employment Minijob
The primary responsibility of the duty refers to undeclared work in the context of benefit fraud, evasion of social security contributions, tax evasion, violation of various notification obligations to the social benefit organizations, but also illegal employment and human trafficking for labor exploitation, as well as the control of minimum working conditions after the posting of workers.
The primary responsibility of the competent authorities in accordance with state law, within the scope of moonlighting on the offenses for unauthorized craft exercise, due to lack of business registration or lack of itinerant trade.
The customs administration and other authorities in the fight against undeclared work are obliged to advice and information on identified breaches directly to these authorities, according to § 6 para 1 sentence 1 SchwarzArbG forward.
Statistical data to combat undeclared work and illegal employment
The fight against undeclared work in Germany is only moderately successful, such as the statistics of the Financial Control ( TCS ) documented. So are 40,000 controls compared with only 72 arrests. This corresponds to 0.18 % and 1.8 ‰. However, is usually in the irregularities found also no reason for arrest, this is only in the area of illegal employment of foreigners in a few cases of importance. A promising economic policies to combat such shadow economic activities will, however, refrain from fighting the symptoms leave and must tackle the root causes: Many citizens believe that this is the increasing pressure of taxes and charges on labor and increasing regulation in the official world of work were. Others argue that the current legal system protects illegal workers by promoting the common interest of client and contractor. This could easily be abolished by a different treatment ( exemption from punishment for any party in connection with private companies claw back or labor rights ) of the two parties. Then no controls by the state more would be required. Higher fines alone tackle only the symptoms of the shadow economy, are expensive and time-consuming and may not lead to the desired success.
In particular, from the ranks of the FDP and SME Union and MIT for the CDU / CSU, the payment of the employer 's social security contributions to the employee is required to combat undeclared work. Proponents lead into the field, so that the incentive for undeclared work would largely lost since the employee learns his actual gross salary and would decrease the difference to the accounting records of the company. Such claims could until now, however, not enforce.
§ 4 SchwarzArbG stipulates that the authorities of the customs administration, and together with the customs administration also assisting them to places, are authorized to enter premises and land and to examine business records and documents. From the context of the Act stating that the duty is authorized so to specifically examine business records, which possibly prove this criminal and administrative offenses. It is important to emphasize that this power is only payable to the customs themselves. The customs authorities may support jurisdiction, but not independently perceive, but only together with the customs administration. These powers to local authorities but also not necessary, since this via independent access standards, eg of Industrial Code § 29, have.
The goal and purpose-driven Search by State bodies persons or property or for the determination of facts is characteristic of searches within the meaning of Article 13, paragraph 2 of the Basic Law. This also consulted in the context of investigations on the role of the customs administration. For this purpose, a court order pursuant to § 102, § 103 Code of Criminal Procedure is required. In rare cases, a search for " imminent danger, " and by the employee of the duty be made in his capacity as " determination person of the prosecutor ."
There are many indications that even the customs during its audits targeted searches for violations of the Black Labour Act, the Tax Code, the posting of workers and social security codes. Searches within the meaning of Article 13, paragraph 2 of the Basic Law are under a strict judge of title and may an investigation only on the basis of a concrete suspicion justified in the frames are arranged.
§ 8 paragraph 2 SchwarzArbG provides that an administrative offense and acts that " ... during an examination does not cooperate ." Although the reasoning runs this: " Conforms to in § 404 para 2 No 17 of SGB III previously controlled offense ."
The presumption of innocence is the most important rules of the rule of law (Article 20, Article 28 of the Basic Law ). It is a constitutional basis of modern democracies. Although it is not explicitly enshrined in the constitution, it follows from Article 6, paragraph 2 of the European Convention on Human Rights as a legitimate anchor at a high level in the hierarchy.
In practical terms, the presumption of innocence, that the accused shall be valid until the contrary is proved as innocents. If an initial suspicion of a crime are present, the Customs Administration obliged to initiate an appropriate investigation. A check with the obligations resulting from this participation is not permitted in this case. As part of the investigation process is for the accused no obligation to cooperate in cooperation with the customs authorities ( nemo tenetur se ipsum accusare - no one may be compelled to testify against himself ). It may also be forced anyone to be evidence against himself. The burden of proof for the correctness of the complaint made is not with the accused, but with the investigating authorities. You have the obligation to investigate the facts by any means, regardless of whether and how to defend the accused.
Primary responsibility of the competent authorities in accordance with state law, within the scope of moonlighting on the offenses for unauthorized craft exercise, due to lack of business registration or lack of itinerant trade.
The Customs Administration is evidence and information on identified breaches directly to these authorities on the quality of cooperation is, however, vary by region. Commercial Legal Violations can not be sanctioned by the customs administration, the cooperation must be mandatory here.
Austria
In Austria botch is used ( which is also used for a bad job, Aus. Well botch ) for the illegal work of the term. Relevant definitions in this context is " botch is the work of an expert, avoiding taxes ".
In order to combat undeclared work and illegal employment, the department KIAB ( " control of illegal employment of workers " ) was launched by the Federal Ministry of Finance in Austria. Until 31 December 2006, this unit was located at the Austrian customs administration. From 1 January 2007, the KIAB was an independent department ( team ) at the tax offices. Since 1 January 2011, has emerged from the KIAB the financial police. The preventive work of KIAB should largely prevent unfair competitive conditions as a result of competitive advantages through illegal work and social fraud in the interest of the labor market and the business location Austria. This is to secure wage and working conditions of domestic and integral foreign workers, especially in regard to the development of the Austrian labor market.
Switzerland
In Switzerland, the concept of undeclared work is ever understood differently according to context.
In strictly legal sense, moonlighting is to work for a third party to pay, if on the one hand the work performance of the main employer suffers (eg additional night work, causes fatigue the next day ), or if the principal employer will have to compete with the work for the third party (Art. 321 para 3 CO ).
A person is also working black when it is employed without being registered with the social security, the tax administration and / or the immigration authorities.