Switzerland Said No, Germany Says Maybe: Who Counts as Self-Employed in Four Countries

Here is a question with four different answers inside a two-hour flight radius: if you and your client agree in writing that you are self-employed, does that agreement count?

Germany is about to say yes, up to a point. Switzerland's parliament said no in June 2025. Austria says the label on the contract is irrelevant and only practice counts. The Netherlands says intent is one of nine things it looks at, and none of them decides on its own.

If you work across borders, that spread is the whole story. A clause that protects you in Berlin does nothing in Zurich.

Germany: the country about to make the contract matter more

Under current German law, your status hangs on two things: whether you work under instructions and whether you are integrated into someone else's work organisation. Lilian Tschan, State Secretary in the Federal Ministry of Labour and Social Affairs, put it exactly that way on the main stage at Freelance Unlocked 2026, and added that those are still the right criteria in the ministry's view. What has changed is the working world around them: for solo self-employed people, she said, the status can no longer be predicted reliably enough in every case. The body that answers the question in a binding way is the Clearingstelle at Deutsche Rentenversicherung Bund, on paper, from the documents both sides submit.

Then Tschan named the principle behind the reform, and it is the exact principle Switzerland threw out a year earlier:

"We want to give the will of the contracting parties greater weight in future. If self-employment is explicitly wanted, then the law must in principle accept and enable it." (Lilian Tschan, translated from German)

And immediately, the limit:

"Belonging to public social insurance cannot be left to the discretion of the working person alone." (Lilian Tschan, translated from German)

That pair of sentences is the German position in miniature. More freedom to define the relationship, in exchange for everybody paying into the pension system.

What the draft actually asks of you

The panel that followed Tschan on stage went through the leaked draft line by line. Professor Rainer Schlegel, former President of the Federal Social Court, read out the construction:

"Work counts as self-employed if, at the point the contract is concluded, both parties agree that it is self-employed activity." (Rainer Schlegel, translated from German)

That is the first condition. Then: the contractor must have the contractual right to send a substitute. At least two of four entrepreneurial criteria must apply (risk of loss and chance of profit, not working essentially for this one client, carrying business-typical costs, advertising in the market). The person must not have been employed by that client immediately before. And the client has to register the engagement with the pension insurance within six weeks. LTO's analysis of the draft confirms the same structure, a planned start on 1 January 2028, an effect limited to statutory pension insurance, and a flat 10% deduction for business expenses when the contribution is calculated. In practice the client withholds the pension contribution from your fee, the way payroll works for employees.

Two objections from the panel are worth carrying with you, because they are about the mechanics rather than the politics.

Jörn Freynick, General Secretary of the BAGSV, went after the substitution right. His example was the conference itself: you book a keynote speaker for a full hall, and on the day someone else turns up instead, perfectly pleasant, entirely not the person you booked.

"It also means that every self-employed person is simply interchangeable." (Jörn Freynick, translated from German)

For trainers, consultants and specialists whose entire pitch is that they are not interchangeable, a criterion built on substitutability is an odd fit.

Silke Becker, Director Legal & Compliance at the staffing firm Etengo, described what happens when a criterion exists on paper and nowhere else. She says the ministry told the associations that the substitution right need not be exercised in practice.

"Then, as a company lawyer, how am I supposed to advise my business and my clients? Write it into the contract, but we won't do it. Is that a sham transaction? I don't know." (Silke Becker, translated from German)

Her second objection is structural, and it is the reason this comparison exists at all: the draft creates a status that applies only in social insurance law. Employment law is untouched, and so is tax law. You can hold a certificate saying you are a new self-employed person while a works council or a tax office looks at the same facts and reaches the opposite conclusion.

Switzerland: parliament said no to exactly this

Swiss freelancers watching the German debate have already had their version of it, and it ended the other way.

Parliamentary initiative 18.455, from Jürg Grossen, wanted the intent of the parties to carry more weight when the AHV decides who is self-employed, mainly with the platform economy in mind. The National Council rejected it in the 2025 summer session by refusing to enter into deliberations, with the government arguing that the existing framework is flexible enough and that the change would create legal uncertainty. The Swiss trade union federation, which campaigned against it, described the effect it feared as allowing status to be set purely by contract wording even where the work was factually dependent.

So Swiss practice stays where it was. The AHV assesses each activity on its economic substance: do you appear under your own business name, do you carry your own economic risk, do you organise the work yourself, do you have several clients. The compensation office decides, one activity at a time, and the same person can be self-employed for one engagement and an employee for the next. Self-employed contributions run at 10.0% (AHV, IV and EO combined), with a lower sliding scale below CHF 60,500 a year. If you are heading there for a project, our guide to freelancing in Switzerland covers the 90-day rule and the staff-leasing route that most Swiss clients will push you towards.

Austria: the label is the least important part of the file

Austria has the clearest position of the four, and the least comfortable. Contract labels carry no weight; what applies is the wirtschaftliche Betrachtungsweise, the economic-substance view, which means only lived practice counts.

The three contract types set out by Brandauer Rechtsanwälte are the frame: the Dienstvertrag with personal dependency and instructions, the freie Dienstvertrag with ongoing services but no personal dependency, and the Werkvertrag, which owes a result rather than hours and comes with a right of substitution and genuine entrepreneurial risk. The red flags auditors look for will sound familiar to anyone who has read the German list: one client, fixed hours matching the client's office, the client's equipment and IT, no substitution in practice, detailed instructions and reporting, a flat monthly fee instead of project-based invoicing.

The enforcement side is where Austria bites. Joint ÖGK and tax audits can look back up to five years and reclassify with interest. On top of that sits a threshold most newcomers meet before they meet an auditor: for Neue Selbständige the 2026 insurance threshold is €6,613.20 a year, accident insurance runs at €12.95 a month, and if you cross the threshold you have eight weeks after your tax assessment to declare it, otherwise a 9.3% surcharge applies.

The Netherlands: the warning about what enforcement feels like

The Dutch case is the one to study if you want to know how a status crackdown actually lands.

Since 1 January 2025, the tax authority enforces again after years of a moratorium. Assessment follows the Supreme Court's Deliveroo ruling: nine viewpoints weighed together, including how the work is organised, whether the person is embedded in the client's organisation, commercial risk, and whether they behave like a business in the wider market. Intent sits inside that weighing rather than above it, and the framework states plainly that no single point decides.

In 2026, ZiPconomy reports, back taxes remain possible for work performed since the start of 2025, late-filing penalties are still suspended, and deliberate misclassification can now draw fines of 10% to 100% on top. Meanwhile the promised clarity has not arrived: the Wet VBAR and a competing parliamentary Zelfstandigenwet are both still on the table. Enforcement first, definition later, which is the sequence German and Austrian associations are trying to avoid.

The four answers side by side

Read the middle row again. The one thing freelancers reach for first, a well-drafted clause, is worth the least in three of the four countries. Even in Germany, where it is about to be worth more, it is a condition alongside four others, not a shield.

What this means if your work crosses a border

Two rules of thumb carry most of the weight.

First, the country where the work is actually performed usually decides how it is classified, and the social insurance question is answered separately from the tax question. A German freelancer on site in Zurich meets Swiss AHV logic no matter what their German GmbH says. Our legal guide for digital nomads covers the mechanics of the 183-day rule, A1 certificates and double taxation agreements, and the country comparison for freelancers in Europe covers where the total package lands.

Second, the criteria travel even when the law does not. One client, their laptop, their office hours, their org chart, their internal email address: that combination looks bad in all four countries. The safest setup is the one that would survive an audit in the strictest of them.

For the German side you can check yourself before anyone checks you. 9am's free false self-employment self-check walks through the questions an auditor asks and takes a few minutes. It is built on German law, so treat it as a diagnostic rather than an answer if your work sits in Austria or Switzerland, though the questions it asks are the ones auditors in those countries ask too. For the German reform itself, our explainer on the planned status reform has the detail.

What to do on Monday

1. List your clients by country, not by size. Every country in that list is a separate rulebook, and the smallest client can carry the largest classification risk.
2. Check your riskiest engagement against the shared red flags. One client for most of your capacity, their equipment, their fixed hours, their internal systems, no realistic right to send anyone else. Fix what you can before it becomes a file.
3. Austria: check the €6,613.20 line before your tax assessment lands. If you crossed it, the declaration window is eight weeks and the surcharge for missing it is 9.3%.
4. Switzerland: assume the contract will not save you. Plan the engagement around the 90-day notification limit or the staff-leasing route instead.
5. Germany: read your next contract for the four entrepreneurial criteria. Loss risk and profit chance, more than one client, your own business costs, visible marketing. Those are what the draft will ask for, and they are worth building into your setup two years early.

The direction of travel across all four countries is the same: less weight on what the paper says, more weight on how the work actually looks. Building a business that looks like a business is the only strategy that works in every jurisdiction on the list.

That includes visibly working for more than one client. If your pipeline currently rests on a single account, create a free profile on 9am and get matched with companies across DACH, so the second client exists before an auditor asks about it.

This article is for general information and does not constitute legal advice.

Freelance Unlocked is co-organized by 9am together with Uplink and freelancermap. This article draws on the sessions of Lilian Tschan and the expert panel with Jörn Freynick, Silke Becker and Rainer Schlegel at Freelance Unlocked 2026. Watch the full talks above, and join us at the next edition: freelanceunlocked.com.