Favorability principle

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The favorability principle is a jurisprudential conflict of laws rule that states that of several legal norms applicable in individual cases, the more favorable for the person concerned is to be applied and the less favorable is to be suppressed. In contrast to the Raisin theory , the favorability principle is dogmatically recognized.

Employment Law


In German labor law, the favourability principle is an expression of the protective principle under labor law. It is intended to ensure that individual employment contracts cannot deviate from the provisions of a collective agreement to the detriment of employees. For the employee , the more favorable regulation is to be applied and the less favorable one is suppressed, unless the higher-ranking standard expressly permits a less favorable regulation.

Agreements that deviate from a collective agreement are only permitted in Germany if they are permitted by the collective agreement (so-called opening clause ) or contain a change in the regulations in favor of the employee ( Section 4 (3 ) TVG ). The same applies to a collision between the works agreement and the employment contract.

In Austria, comparable principles apply to regulations based on collective agreements .

The favourability principle is also used in international labor law to protect the employee in the event of a choice of law . Article 8 (1) of the Rome I Regulation states that a choice of law may not deprive the employee of the protection that he or she is entitled to under the applicable law without this choice of law.


When comparing benefits, the individual interests of the individual employee must be based on objective criteria. The overall interests of the workforce are usually not relevant, nor is the subjective judgment of the person concerned. Is z. For example, if an individual contractually agreed period of notice is more favorable for the employee, because in the event of termination by the employer it provides longer periods than a collective agreement or Section 622 BGB , an employee, if he wants to terminate himself, cannot rely on the employment contract in this case less favorable for him.

As an exception, however, a redistributive collective comparison of benefits is also possible. The Federal Labor Court has ruled that "[v] contractually justified claims of employees to social benefits, which are based on a standard regulation set by the employer or an overall commitment, can be limited by a subsequent company agreement within the limits of law and equity if the Overall, the new regulation is not less favorable when viewed collectively. "

The comparison of benefits must also take place in the form of a so-called subject group comparison , whereby all contractual provisions that are internally related are to be compared with one another, for example the entire regulation on the notice periods and not just a single period. The jurisprudence of the Federal Labor Court applies the principle of favorability after the comparison of subject groups only if the compared sets of rules are beyond doubt more favorable for the employee. In its judgment of April 15, 2015, the 4th Senate of the Federal Labor Court therefore dismissed a lawsuit in which a Telekom employee claimed what he claimed was a more favorable provision in his employment contract that allowed him a 34-hour workweek during the subsequently concluded collective agreement provided for a 38-hour week. Since the increased working hours were remunerated, it was not clear from the BAG's point of view that the shorter working hours with lower wages were cheaper than slightly longer working hours with higher wages.

In cases of a transfer of business , the favourability principle is partially superseded by the rules of Section 613a Paragraph 1 Clause 2 BGB. In principle, collective agreements and works agreements may not be changed to the detriment of the employee before the end of one year after the date of transition.

Family law

In the case of children with parents of different nationalities, the applicable law of parentage is determined according to the favorability principle. It should determine the right of a child's descent from its parents that is most favorable for the child. Which criteria should be decisive for this is controversial in literature and case law.

Tax law

See: Cheaper test

European law

Article 53 of the Charter of Fundamental Rights of the European Union expressly stipulates that the Charter of Fundamental Rights, in accordance with the principle of favourability, must in no case mean a deterioration in the fundamental rights situation for individuals. If the Charter of Fundamental Rights and other legally valid catalogs of fundamental rights (including in particular the European Convention on Human Rights and the constitutions of the member states) contradict each other , the rule that is better for the individual applies.

See also

Web links

Individual evidence

  1. Heike Schneppendahl: The relationship between works agreement and employment contract (without year)
  2. What does the favorability principle mean? Web site of the private workers' union, print, journalism, paper
  3. Regulation (EC) No. 593/2008 (PDF) (Rome I Regulation)
  4. ^ Löwisch, Manfred and Rieble, Volker: Collective Agreement Act, 4th edition, Munich 2017, § 4 Rn. 593. There, however, criticized as "invented in law".
  5. Federal Labor Court (Great Senate), decision of September 16, 1986 - GS 1/82 (5th Senate December 8, 1982 5 AZR 316/81), 1st guiding principle - BAGE 53, 42 = NZA 1987, 168.
  6. Press release of the Federal Labor Court No. 21/15. from April 15, 2015
  7. BAG on the principle of favorability: No cherry picking when comparing employment and collective bargaining agreements, press release by the Haufe online editorial team, April 16, 2015
  8. Competing Parent Statutes - Acknowledgment of Paternity and the Favorability Principle May 6, 2015
  9. Philipp M. Reuss: The law applicable to descent and the principle of favorability - a never-ending story? to OLG Karlsruhe, decision of February 2, 2015 - Az. 11 Wx 65/14 and Art. 19 EGBGB