German law contravenes the EU equal treatment Directive

The European Court of Justice ruled in April 1997 that some provisions of German civil and labour law do not correspond with the EU Directive on equal treatment for men and woman.

On 22 April 1997 the European Court of Justice (ECJ) issued a judgment stating that some provisions of the German Civil Law (Bürgerliches Gesetzbuch,BGB) as well as the German Labour Court Law (Arbeitsgerichtsgesetz, ArbGG) offend against the "Council Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions" (76/207/EEC). The Directive which was adopted by the Council of Ministers on 9 February 1976 proclaimed that the Member States shall put into effect the "principle of equal treatment" (§ 1) which means "that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly" (§ 2).

The recent ECJ judgment was in the case of Nils Draehmpaehl/Urania Immobilienservice OHG (Case C-180/95) which had been referred by the Hamburg Labour Court for a preliminary ruling on questions regarding the interpretation of the Council Directive. Nils Draehmpaehl was seeking reparation of damage allegedly suffered as a result of discrimination on grounds of sex in the making of an appointment for an interview for a job with Urania Immobilienservice OHG. All questions refer to certain provisions of German civil and labour law as they currently stand:

  • a provision which makes reparation of damage suffered as a result of discrimination on grounds of sex in the making of an appointment subject to the requirement of fault (§ 611a, I BGB);
  • a provision which places a ceiling of three months' salary on the amount of compensation which may be claimed by applicants suffering discrimination (§ 611a, II BGB); and
  • a provision which imposes a ceiling on the aggregate amount of compensation of six months' salary payable to several applicants suffering discrimination (§ 61b, II ArbGG).

The ECJ ruled that all these provisions do not correspond with the EU equal treatment Directly. Firstly, a person who has been discriminated against on grounds of sex in the making of an appointment should receive compensation independent of the requirement of fault. Secondly, the Court of Justice pointed out that sanctions chosen by the member states to avoid discrimination on the grounds of sex must have a real dissuasive effect on the employers. Therefore, the ceiling on the amount of compensation of three month's salary in the case of discrimination against a single individual, and six months' salary in the case of discrimination against several applicants, does not correspond with the aim of the Directive in either of the cases.

Following this judgment by the ECJ, the German Government now has to change German law to create a better juridical protection against discrimination on the grounds of sex in the making of an appointment. The director of the Institute for Economics and Social Science (WSI), Heide Pfarr, who was one of Mr Draehmpaehl's advocates, pointed out that there has already been a long discussion on the rather weak German penalties against sexual discrimination, and accused the German Government of not having provided a better juridical protection before.

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