Opening clause
An opening clause is a clause in laws or contracts , according to which deviating agreements that do not comply with a regulated norm should nevertheless be valid.
General
The opening clause comes from collective bargaining law , where it grants individual companies the option of deviating from the provisions of the collective agreement at company level or at the level of an individual employment relationship in order to ensure the necessary individual flexibility compared to the collective agreements . The legislature or contractual partner has provided a certain regulation, but with the opening clause expressly allows a different regulation. The opening clause thus increases flexibility in laws or contracts. Statutory opening clauses should always maintain proportionality when a law has a large number of heterogeneous persons affected, for whom uniform application would lead to undesirable individual hardship .
Technically, an opening clause can be recognized by the following formulations: "Unless otherwise agreed, ...", "Any regulation deviating from this legal / contractual one remains unaffected", "unless ..." or "Unless otherwise agreed ".
species
The general (unconditional) opening clause in collective agreements stipulates that a certain framework condition must be specified in operational terms ("corridor solution") and applies to all companies subject to the collective agreement. Here the collective agreement applies a general formulation and leaves its specification to the company level. A restricted (conditional) opening clause, on the other hand, only works if the conditions associated with it are met. This applies, for example, if
- a company is in an economic emergency and cannot afford financially costly collective agreements;
- the SME clause only applies to small and medium-sized companies and collective bargaining agreements are reserved for large companies or
- regional restrictions are intended to prevent a comprehensive collective bargaining agreement.
Statutory opening clauses
Opening clauses are also widespread in laws. If there is a lack of this or similar formulations, the specified provisions must be observed. In § 16 para. 4 WAY certain requirements contained in the resolution, but the apartment owners may make an exception on an opening clause. Section 9 (1) SGB VII leaves the definition of occupational diseases to the federal government . However, so that diseases that are not (yet) included in the list and that are considered to be occupational diseases according to new scientific findings can be recognized, Section 9 (2) SGB VII contains an opening clause, according to which the accident insurance institutions may also recognize these diseases as insured events.
Opening clauses in the collective agreement
This possibility was discussed in particular in the context of collective agreements , where it allows for a supplementary conclusion of a supplementary company collective agreement , a works agreement , a service agreement or deviating regulations through employment contracts . Section 4 (3) of the Collective Bargaining Act permits such opening clauses. These can relate to collective bargaining framework provisions that have to be specified and implemented in the company (e.g. regulations on performance-related remuneration or flexible working hours), but they can also allow minimum standards that are bindingly agreed in the collective agreement to be fallen below (e.g. deviations from the collectively agreed wages and salaries down in economic crisis situations). It is important that the use of the opening clause requires the approval of the works council , in the public service the staff council .
Pforzheim Agreement
In the course of the Pforzheim Agreement in 2004, IG Metall Baden-Württemberg and Südwestmetall introduced regulations for the process of deviating from collective agreements (opening clauses). The agreed cornerstones should take pressure off the employees and the works councils and enable "controlled decentralization". Was agreed:
- Before a regulation can be made, companies must provide comprehensive information and the data submitted is checked (in some cases external); The union is also allowed to look at the books of the company (which is trying to achieve a tariff deviation), which gives it a kind of informal, extra-company participation.
- Deviations are only possible for a limited period.
- Deviations are only possible if a positive development in the employment situation in the company is expected.
- Deviations from the collective agreement are only possible within the framework of a supplementary company collective agreement.
- When opening, the effects on competition and employment in the sector and the region are assessed.
Contract law
In particular, comprehensive contracts such as property purchase agreements , company purchase agreements , construction contracts or complex tenders are usually formulated down to the last detail and contain mandatory regulations to be observed by the contracting parties. This attention to detail is intended to prevent problems of interpretation later on and to provide those involved with a complete set of agreements on their rights and obligations. These contracts are to be fulfilled by the contracting parties, even if the basis of the business may have changed. In order to give these contracts a certain dynamic, the contracting parties can already consider opening clauses in favor of certain contract clauses when drafting the contract. They provide that certain direct and mandatory provisions of the contract can be deviated from if the other contracting party agrees.
Banking law
The MaRisk contain opening clauses in order not to ruthlessly subject all credit institutions to the same regulation. For example, small savings banks or cooperative banks are likely to be exposed to a different risk situation than a large multinational bank , which has to meet higher risk management requirements. Opening clauses are intended to uphold the principle of proportionality in the heterogeneous banking sector and to enable individual institutions to implement the supervisory requirements in an individually adapted manner.
The MaRisk know real and spurious opening clauses . The former provide for size-dependent regulations, are described using terms such as "materiality", "appropriateness" and "suitability" or appear as "should requirements". Fake opening clauses can be recognized there by their “fundamentality” or by time-related regulations (such as immediately or “promptly”).
