Von Colson decision

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The Von Colson decision is an important decision by the European Court of Justice on the conflict between European law and national law .

facts

The subject of the dispute was Directive 76/207 / EEC on the implementation of the principle of equal treatment for men and women with regard to access to employment, vocational training and career advancement, and with regard to working conditions . The German legislator had implemented this guideline into national law through the EU Labor Law Adaptation Act of August 13, 1980. A newly inserted § 611a BGB (old version) gave applicants who were rejected solely on the basis of their gender a claim for damages against the employer; the latter had to compensate the applicants for the loss of trust that had occurred. As a rule, however, such damage only existed in the amount of the travel costs to the interview, possibly even only in the pure postage costs for sending the application letter, which is why the regulation was already sharply criticized in the literature and was also derogatoryly referred to as "postage paragraph".

The state of North Rhine-Westphalia advertised two positions as social workers at the Werl correctional facility . The two plaintiffs applied, were also invited to an interview, but were subsequently rejected on the grounds that only male applicants would be considered for this position, as the prison only accommodates male prisoners.

Both plaintiffs then took action before the Hamm Labor Court and demanded that the state of North Rhine-Westphalia employ them as social workers, alternatively, compensation of six months' wages. The labor court found that the plaintiffs were actually rejected on the basis of their gender alone. However, it intended to dismiss the lawsuit and only award the plaintiffs the travel expenses of 7.20 DM, since an action for discontinuation is out of the question and, from the point of view of the court, the special legal provision in Section 611a (2) BGB allows recourse to general ones or rules out unwritten norms of tort law . However, it submitted the question to the European Court of Justice as to whether Directive 76/207 / EEC gives rise to an enforceable right to be hired in the event of a violation of the prohibition of discrimination and, if not, whether instead there is a claim for damages against the employer.

Summary of the judgment

The European Court of Justice first ruled that Directive 76/207 / EEC does not give rise to a right to recruitment towards the employer, as this is not regulated in the directive and such a claim cannot be derived from the history of the directive.

Subsequently, however, he decided that an applicant who is discriminated against for breaching Directive 76/207 / EEC is entitled to appropriate redress. It is true that the manner of this reparation is not regulated in the directive, but it must constitute a means of pressure to be taken seriously by the employer and must not be so low that it does not prevent an employer from committing further violations of the directive. A purely symbolic compensation, as actually standardized in Section 611a (2) of the German Civil Code (BGB), is fundamentally not sufficient to meet the compensation claim derived from the directive.

The question now arose as to whether Directive 76/207 / EEC had direct effect on the parties, i.e. whether a claim for damages could be based directly on this Directive. The Court of Justice denied that, because the Directive does not standardize any specific sanction and is therefore not sufficiently determined to have direct effect. The court ruled, however, that it is in principle the task of the national courts to ensure adequate redress by interpreting national norms in the light of Union law. This interpretation should not be restricted to the literal sense of the national provisions; the courts must rather take advantage of the full discretion and where appropriate also standards by way of judicial development of the law interpret. The national courts are not allowed to go beyond this discretion and interpret a provision as the opposite of it, they are denied that.

Consequences of the judgment

Although the European Court of Justice has declared with this ruling that Section 611a (2) BGB violates European law, the legislature saw no reason to take action and, for example, amend the provision in accordance with European law. This caused problems when the Federal Labor Court was first confronted with the problem. In the opinion of the court, an interpretation of the provision to the effect that further claims for damages are also possible would far exceed the limits of judicial legal training. The court made do by ruling that a violation of Section 611a BGB also constitutes a violation of general personal rights and thus opens up claims against the employer under Section 823 BGB. However, the court was forced to limit the possible compensation to a monthly salary.

The legislature only reacted in 1994 - after further decisions by the European Court of Justice in similar cases - and adapted the regulation of Section 611 (2) BGB in order to grant applicants a real claim for damages. However, this claim for damages was limited to three months 'salary, the employer had to be proven to be at fault and the employer could limit the total claim per selection procedure to six or twelve months' salaries before the labor court (according to the legal justification, this regulation should protect small and medium-sized companies from a possible financial Protecting ruin through compensation claims). However, this revised regulation was also declared contrary to European law by the European Court of Justice in the Draehmpaehl decision in 1997 .

literature

  • Nicole Baldauf: Violation of guidelines and shifting the contra-legem border in private law relationships: The conflict between guidelines and national law when applying the law . Mohr Siebeck, Tübingen 2013, ISBN 3-16-152878-6 , pp. 84–86.
  • André Janssen: Preventive profit skimming . Mohr Siebeck, Tübingen 2016, ISBN 3-16-153142-6 , pp. 249-257.

Web links

Individual evidence

  1. Janssen, p. 250 f.
  2. Janssen, p. 252
  3. Janssen, p. 253