Sup­ple­men­tary Terms of Con­tract for IT Ser­vice (EVB-IT-Ser­vice) vs. sub­con­tract­ed labour*

Do you want to pro­cure sup­port ser­vices for your data cen­ter? Or do you need IT con­sult­ing ser­vices? The ques­tion always aris­es as to how you award these ser­vices.

Fun­da­men­tal prin­ci­ples

The basics are sim­ple. If the EU thresh­old is reached, you issue a Europe-wide invi­ta­tion to ten­der. If it is not reached, the ten­der is nation­al. Since you are allow­ing an exter­nal par­ty access to data that may be par­tic­u­lar­ly sen­si­tive, you will want to take some pre­cau­tions dur­ing the pro­cure­ment process. Pos­si­bly an order pro­cess­ing con­tract. Per­haps also self-dec­la­ra­tions on data secu­ri­ty.

So far, so clear. But how do you struc­ture your con­trac­tu­al rela­tion­ship?

EVB-IT Ser­vice Agree­ment

In prin­ci­ple, you can refer to the EVB-IT ser­vice con­tract. At the time of pub­li­ca­tion of this arti­cle, the 2018 ver­sion applies. In the user notes you will find some inter­est­ing com­ments on one of the most unpleas­ant top­ics in IT ser­vice pro­cure­ment: unau­tho­rized labour leas­ing and bogus self-employ­ment.

It is right­ly made clear in the user instruc­tions that — in the event of con­tra­dic­tions between con­tract and prac­tice — the prac­tice decides. About what? About whether the third par­ty is inte­grat­ed into your busi­ness. Whether or not there is bogus self-employ­ment.

Every­thing okay?

You are prob­a­bly won­der­ing what else there is to check. After all, the EVB-IT ser­vice con­tract spec­i­fies every­thing. Per­haps you are also of the opin­ion that you have no influ­ence on what “the prac­tice” makes of your con­tract.

We think it’s not quite like that. First of all, take the risk seri­ous­ly. EVB-IT ser­vice con­tract or not: Case law is con­stant­ly chang­ing, espe­cial­ly in this area. Take a look at the world of hos­pi­tals, for exam­ple. For some time now, fee-based physi­cians have been hit. They are increas­ing­ly being clas­si­fied as “pseu­do-self-employed”.

What to do?

What can you do in the con­text of award­ing? First of all, you could advise against a real award. Con­ceiv­able are ten­der-free “1/4‑employment rela­tion­ships” or 450-euro con­tracts.

If the staffing plan or sim­i­lar does not per­mit this: Alter­na­tive­ly, extend­ed ver­sions of the EVB IT ser­vice con­tract can be con­sid­ered. These arrange­ments should ensure that a “clean” self-employed per­son does not become a “bogus self-employed per­son” when the con­tract is exe­cut­ed. They should increase legal cer­tain­ty — and cap­ture the “lived prac­tice”.

If you are now won­der­ing what such designs might look like: feel free to con­tact us.

*This legal tip is no sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, it does not relate to your case, and it also rep­re­sents a snap­shot, as the legal basis and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves main­te­nance and ini­tial ori­en­ta­tion pur­pos­es and is intend­ed to moti­vate you to clar­i­fy legal issues at an ear­ly stage, but not to dis­cour­age you from doing so.