The German Labour Ministry's draft reform of the Statusfeststellung offers freelancers what they have asked for over many years: a self-employed status that holds up in an audit. The price is the state pension. Under the draft, the client withholds 16.74% of the fee and pays it to the Deutsche Rentenversicherung. On paper each contract chooses. In procurement, I expect the paid route to become the default the moment it exists.
I bill days into German enterprises as an IT-security contractor, and status risk is the one clause in every contract nobody in the room wants to own. This draft moves that risk. Where it moves it to, and who ends up paying, is worth reading closely before the coalition finishes negotiating it.
What the draft actually proposes
The BMAS Referentenentwurf, circulated at the end of March 2026, adds a third category to German social-security law next to employment and classic self-employment: neue Selbstständigkeit, anchored in a new § 7(5) SGB IV. Two employment lawyers writing in LTO summarise the test. Both parties must agree at signing that the work is self-employed. The contractor must hold a contractual right to send a substitute, and must meet at least two of four further criteria. Anyone employed by the same client in the previous six months is excluded. Haufe's summary lists the same structure.
| Criterion | Status in the draft |
|---|---|
| Right to send a substitute | Mandatory |
| Profit opportunity and loss risk | One of four, two required |
| Not working essentially for this one client | One of four, two required |
| Bears typical business expenses | One of four, two required |
| Markets itself visibly | One of four, two required |
The money works like payroll. According to the leaked draft as analysed by the freelancers' association VGSD, the base is the invoiced fee minus costs directly attributable to the job and shown on the invoice, such as travel, minus a flat 10%. The rate is 16.74%, which is 90% of the current 18.6% pension contribution rate. The client remits it, the contractor bears it. The planned start date is 1 January 2028, a lead time the Mittelstandsbund and LTO both attribute to the IT changes needed at the social-insurance carriers and in payroll software.
| Today: case-by-case status test | Draft: neue Selbstständigkeit | |
|---|---|---|
| Legal test | Overall assessment of the individual case | Fixed criteria: substitute right plus two of four |
| When you know | After an audit or a status procedure | At signing, if the criteria hold |
| Exposure | Contributions reclaimable four years back, thirty if intentional | Settled for contracts in the new status |
| State pension | Not compulsory for most IT freelancers, unless they work essentially for one client with no employees (§ 2 no. 9 SGB VI) | Compulsory, withheld by the client |
A fee for certainty the state already owes
The draft does not make the existing status test any clearer. Anyone who declines the pension stays in the same case-by-case assessment as before. What the draft builds is a paid lane beside it. That is the part I object to. Legal certainty is a property the law owes to everyone it applies to. Selling it per invoice turns a drafting failure into a revenue line.
The price is not cheap either. Because the base is revenue less a flat 10% rather than profit, VGSD calculates that contributions can run well above what an employer and employee would pay together on the same earnings. In its most extreme worked example, where real business costs are 30% of revenue, the client-withheld contribution comes out 54.3% higher than the combined employer and employee contribution on the same earnings. The LTO authors put the structural point plainly: the status is bought through contributions, whatever the actual working conditions look like.
In the Bundestag debate on 16 April 2026, SPD member Jens Peick framed the goal as preventing false self-employment “without preventing self-employment”. The SPD said it wanted the procedure finished by summer. Summer has come and gone. The sentence was right. The draft that is supposed to deliver it charges for the privilege.
The one mandatory criterion is the one security work fails
The only compulsory criterion in the new status is a right to send a substitute, and in IT security that is the clause clients strike out. A company that onboards a named contractor, runs a background check and then grants administrative access to its firewall estate does not accept whoever that contractor sends on Monday instead. Access governance is the point of the job: privileged access belongs to a named, vetted person, and a substitution clause undoes that.
The second trap is the criterion about not working essentially for one client. A senior contractor on a typical long engagement with one enterprise client fails it by design, because that is what the engagement is. The irony is that a contractor with no employees who works essentially for one client can already be compulsorily insured today under § 2 no. 9 SGB VI, often without knowing it. A realistic senior security profile therefore meets “business expenses” and “visible market presence”, fails the substitute right and often the single-client test, and stays exactly where it is today. My read is that the new status was drafted with trainers, coaches and creative freelancers in mind. It is largely closed to the specialists whose status disputes generate the biggest reclaims.
The pension obligation is coming either way
The draft runs in parallel with a second track. On 23 June 2026 the Alterssicherungskommission handed the government 33 recommendations. Recommendation 22 puts every self-employed person who is not already compulsorily insured and who starts after a cutoff date into the statutory pension, with no opt-out. People already self-employed on that date get an unconditional opt-out. The Deutsche Rentenversicherung called compulsory cover for this group “sinnvoll”, sensible. The standard contribution cited for 2026 is €735.63 a month, halved for the first three years after founding.
Put the two tracks together and the offer becomes clear. Newcomers will pay into the state pension anyway, so they might as well buy status certainty with it. For contractors who are already independent and would keep their opt-out, the draft asks them to give up that opt-out contract by contract in exchange for certainty. The single most important number in the whole reform is therefore the cutoff date, and as of September 2026 nobody has set it. VGSD launched a petition on 1 September 2026 whose title is the right demand: pension obligation only with legal certainty and fair contributions.
The audit side just got cheaper to aim
While the law is negotiated, enforcement is automating. The pension insurers' tool KIRA, short for artificial intelligence for risk-oriented employer audits, scans the company data available digitally for patterns and anomalies and suggests where auditors should look. The DRV's KIRA glossary page stresses that inspectors decide and nothing is automated, and states that the full rollout is planned for 2026. The DRV does not say KIRA hunts false self-employment specifically. In December 2024 the Mittelstandsbund told its members that companies hoping false self-employment goes unnoticed should expect closer scrutiny.
A risk score is the start of an assessment, not its end, which is the argument I made about measuring AI risk with numbers. Procurement departments rarely read it that way. When the perceived cost of a contractor rises, the likelier reflex in a large German client is not to rewrite the contract so it reflects genuine independence. It is to end the engagement, cap its duration or move it into temporary agency work. The EU is pushing the same direction from Brussels: the Platform Work Directive creates a presumption of employment where the facts indicate control and direction, and member states must transpose it by 2 December 2026. It targets digital labour platforms, not direct consulting contracts. The direction is still the one buyers react to: presume employment and put the burden of proof on the buyer.
What I would do as a contractor now
- Document the four secondary criteria regardless of the law. Multiple clients, your own equipment and expenses on the invoice, a visible market presence. They are what any auditor reads today, and the draft simply writes them down. In an audit, documentation beats technology, and status is no exception.
- Invoice travel as its own line. The draft deducts directly attributable costs shown on the invoice from the contribution base. A lump-sum day rate that hides travel inflates the base.
- If a client insists on the new status, price it. The 16.74% comes out of your fee, so negotiate the day rate with that in view.
- Watch the cutoff date. Whether you count as already self-employed on that date decides whether you keep an opt-out. That date matters more than any criterion in the draft.
This sits on top of a market that is already tight. In the 2026 rate data, 62% of respondents to the Freelancer-Kompass named false self-employment as a major legal gap, and in the consulting market the work that holds up is obligation work. Obligations such as NIS2 in the Mittelstand create the demand for exactly the specialists this reform leaves in the grey zone.
Why it matters
The reform is right about the problem and wrong about the price. A clear, criteria-based status test is overdue, and the draft finally writes one down. Tying it to a compulsory pension turns legal certainty into a product, and the one mandatory criterion excludes the security contractors whose work depends on a named person holding the keys. Fix the substitute clause and decouple the pension, and this becomes the reform freelancers asked for. Leave it as drafted, and the test stays murky for the people it was meant to help, with a paid exit for everyone else.