In the last few weeks, on June 17th and 18th, 2015, both the Fourth Senate and the Eighth Senate of the Federal Labor Court decided to refer two important legal questions to the European Court of Justice (ECJ), firstly in the area of the General Equal Treatment Act (AGG) and secondly Right of transfer of business according to § 613 a BGB, to be submitted for decision.

Protection against discrimination even in the case of a fictitious application?

The proceedings before the Eighth Senate of the BAG (case number: 8 AZR 848/13 (A)) concerned the question of how a “sham application” by the plaintiff, as determined by the court, affected the claim he made to an insurance company for compensation for discrimination affects the application.
Can a job applicant who obviously did not apply for a position with the aim of being hired be an “applicant” or “employee” in the sense of § 6 Paragraph 1 Sentence 2 AGG? If only German law were to be used as a basis for this case, the Federal Labor Court is of the opinion that the answer to this question would be “no”. This is at least the case if - as in the present case - it is clear from the wording of the application itself and the claimant's further behavior in the application process, for example by rejecting an invitation to an interview with the HR manager, that the applicant is not actually being hired with his application purpose, but simply wants to achieve status as an “applicant” within the meaning of the AGG in order to be able to assert claims for compensation if the application is rejected.
However, since the relevant EU directive, unlike the German AGG, does not use the term “applicant”, but rather generally protects “access to employment or to dependent and self-employed work”, the Federal Labor Court has referred this question to the ECJ for a preliminary ruling. The ECJ will now have to decide whether the person whose application shows that he is not looking for a position and employment, but only wants to create the conditions for a compensation claim, also enjoys the protection of the directive and thus of the AGG. If the ECJ affirms this, in future only the existence of a formal application would be sufficient, regardless of how serious this application is. This would give so-called “professional plaintiffs” and “AGG hoppers” the opportunity to systematically file lawsuits.

Dynamics of a referral clause after a transfer of operations

In a further procedure, the Fourth Senate of the BAG (4 AZR 61/14 (A)) asked itself whether the interpretation of Section 613a of the German Civil Code (BGB) it had previously made had the effect of a reference clause in the employment contract that dynamically refers to a collective agreement applicable to the seller of the business refers, nor is it consistent with Union law. Based on national law, the Fourth Senate has so far assumed that the purchaser of a part of the company is contractually bound to a dynamic referral clause on the basis of Section 613a Paragraph 1 Sentence 1 of the German Civil Code (BGB) as if he had made this contractual agreement himself with the employee. The result of this is that after a business transfer, the person acquiring the business automatically remains bound to these provisions of the collective agreement even in the event of future changes to the collective agreement referred to, for example in the event of future wage increases. The ECJ should now clarify by means of a request for a preliminary ruling whether this interpretation conflicts with provisions of Union law - in particular Article 3 of Directive 2001/23/EC and Article 16 of the Charter.
With its request for a preliminary ruling to the ECJ, the BAG obviously intends to clarify the uncertainty that arose from a decision of the ECJ in 2013 in the (English) “Alemo-Herron” case as to what effects this decision has on German law. In the “Alemo-Herron” case, the ECJ had ruled that Article 3 of Directive 2001/23/EC prevented a member state from providing that, in the event of a transfer of an undertaking, the clauses that were dynamically extended to be negotiated and concluded after the date of the transfer refer to collective agreements, are enforceable against the acquirer if the latter does not have the opportunity to take part in the negotiations on these collective agreements concluded after the transfer (ECJ, judgment of July 18, 2013 - C-426/11).