SECTION 1. MEANING

A prerequisite for the existence of an employment contract is an employee carrying out work for remuneration under someone's authority, i.e. in subordination: the employer has the right to give orders and the employee has to obey. The way in which the authority is expressed and/or the extent to which it is used is of less importance for the existence of an employment contract. It suffices that the employer has the right to exert authority in order to decide that there is indeed a contract of employment. It is precisely this power relationship that distinguishes work carried out within the framework of an employment contract and work done outside such a framework. The two other elements – work and wages – are also present in the case of self-employed activities. Here, too, we are dealing with work that is remunerated in some way. So it is the relationship of subordination that determines the scope of employment contract law. However, to a large extent this criterion is also the basis for the applicable social security scheme. Article 1 of the Social Security Act stipulates that this law applies to employees and employers bound by an employment contract. Accordingly, through the reference to the employment contract the relationship of subordination is also used for the application of the social security legislation for employees. On the other hand, the existence of an employment contract rules out the application of the social security legislation for self-employed persons and this as a result of the fact that pursuant to the legislation regarding the social status for self-employed persons this system only applies ‘in the absence of an employment contract’. In principle, this means that the employment status determines the social security status and not vice versa. Only if the social security qualification deviates explicitly from the qualification under labour law, will this qualification take precedence. However, in that case it remains limited to the application of the social security regulations.