Germany: International Employment Update: New Legislation (Germany) - February 2010

Last Updated: 12 March 2010
Article by Ralph Panzer

Originally published February 2010

Extension of the short-time working benefit, Regulation of 8 December 2009

Pursuant to German Social Security Laws, employees can obtain short-time working benefits provided by the employment authorities. These benefits granted by the state compensate to a large extent the losses the employee suffers from a reduction of working time due to short-time working. The statutory maximum term for such benefits is six months. The term can, however, be extended up to 24 months by the German Federal Ministry of Labour and Social Affairs.

Due to the worldwide economic crisis, by regulations of 29 May 2009, the German Federal Ministry of Labour and Social Affairs had extended the benefit period to 24 months for such employees who started working short-time before 1 January 2010. The state benefits prevented major job losses due to the economic crisis in Germany that would have occurred by now. Also by its recent regulation of 8 December 2009, the German Federal Ministry of Labour and Social Affairs set the benefit period to 18 months for employees who start working short-time from 1 January 2010 to 31 December 2010. The Federal Employment Authorities have thus reacted to the still severe impact of the worldwide economic crisis on the German labour market.

Reported case law

European Court of Justice, Decision of 19 January 2010

The term of the notice periods of employees are set out in the German Civil Code (section 622) and relate to the employee's job tenure with the current employer. Depending on the term of service, the notice periods for the employer may vary from four weeks to seven months to the end of the calendar month (if the employment relationship has lasted 20 years with the same employer). To calculate the relevant job tenure for the notice period under section 622, a period prior to the 25th birthday of the employee may not be taken into account. This means, for instance, that an employee at the age of 28 who started working for the company at the age of 20 has a job tenure as regards the calculation of the notice period under the above conditions of only three years and thus a shorter notice period would apply to his employment.

In its decision of 19 January 2010, the European Court of Justice held that the part of section 622 which excluded the job tenure completed before the employee's 25th birthday from the calculation regarding the length of the notice period, is age discriminatory and thus void. In the course of its ruling the ECJ confirmed that, in addition to its prior case law, national courts are entitled but not required to make a reference to the ECJ for a preliminary ruling on the interpretation of the principle of non-discrimination on grounds of age. So, national courts are entitled in such cases to also decide – without making a reference to the ECJ - not to apply provisions of national law considered to be contrary to European Union law. This is now supposed to be possible even for cases where there is no space for interpretation of the law according to the directive. With this decision, the ECJ has broadened the competency of the national courts.

Federal Labour Court, Judgment of 17 December 2009 – 8 AZR 1019/08

In February 2009 the ECJ ruled in its "Klarenberg" judgment that a transfer of business under the Acquired Rights Directive (ARD) could also take place even if the transferred business loses its organisational independence with the transferee as far as a "functional link" between the "production factors" is retained. This not so easy to interpret statement of the ECJ put the long established case law of the German Federal Labour Court (FLC) into question, according to which a transfer of business required a transfer of an economic entity or parts of it which retain its identity after the transfer, where the FLC was relatively strict as regards the question whether the business unit has retained its identity.

In its recent ruling after the "Klarenberg" judgment of the ECJ, the FLC stated that it is not a transfer of business, even though an extensive transfer of equipment has taken place, if the transferee requires and uses the transferred equipment just partially due to a substantially modified operational concept. This is supposed to apply, at the very least, if the transferee has made substantial modifications regarding the organisation and the staff structure.

In the case at hand, the transferor had managed three canteens of a car company. The claimant was one of the kitchen assistants. In contrast to the former organisation of the canteens, the transferee no longer prepared freshly made meals but only heated meals which were delivered by external suppliers, so cooks were not necessary at all. The FLC held that the former business purpose of preparing fresh meals had been changed and the kitchen equipment was thus used in a substantially different manner. The case shows that the FLC continues its former case law as long as it is not obviously contradictory to the latest case law of the ECJ.

Federal Labour Court, Judgment of 17 December 2009 – 8 AZR 670/08

According to the German Anti-Discrimination Act (ADA), the discrimination of an employee is also prohibited in cases where the discriminating person does not exactly know if the possibly discriminated employee belongs to the group of employees protected by the ADA. Thus, questions in a job interview which aim at certain health impairments may imply the question whether there are any disabilities which would indicate discrimination.

In the case at hand, the claimant applied unsuccessfully for a job to assist in academic studies and clinical research with a company in the field of medical research and development. In the job interview the plaintiff was asked if he received psychiatric or psychotherapeutic treatments. He even had to sign that this was not the case. The Federal Labour Court has referred the case to the Regional Labour Court to clarify if these questions indicate discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.