Personal and material scope

• Author: Matthias Mahlmann
• Pages: 43-55

43

3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU a nd non -EU nat ionals (Recit al 13 and Article 3(2), Directive 2000/43

and Recital 12 and Article 3(2), Directive 2000/78)

In Germany, there are no residence or citizenship/nationality requirements for protection

under the relevant national laws transposing the directives.

The AGG is not restricted to German nationals or residents. It applies to everyone within

the German jurisdiction, including undocumented migrants.

The p ersonal scope of t he c onstitutional guarantee of equality is not limited to German

citizens as it is a human right with universal application. A ny person who is the target or

is otherwise affected by an action of a public authority that is contrary to the guarantee of

equality is p rotected. The main legal pillars of anti-discrimination law thus are applicable

to migrants and refugees as well.

The regulations on the special protection of severely disabled people apply to people who

are legally resident or employed i n Germany.230 Other special legislation only applies to

German citizens and those of other qualified countries, especially EU co untries.231

3.1.2 Natural and legal persons (Recital 16, Directive 2000 /43)

a) Protection against discrimination

In Germany, the personal scope of anti-discriminati on law covers natural and (certain)

legal persons for the purpose of protection against discrimination.

In terms of protection, Section 7, in conjunction with Sections 3 and 6(1) AGG, protect

employees, thus natural persons. The prohibition of discrimination against disabled people

in employment applies only to natural persons.232 In other areas of the law, depending on

the circumstances, natural and legal persons can be protected: for example, Section 19(1)

AGG applies to natural persons in contract law and Article 3 GG to l egal persons, such as

a religious community.

The constitutional guarantee of equality protects natural persons. Legal persons are within

the scope of the norm to the extent allowed by the nature of that right, which is relevant

for religious organisations.233 It prohibits discrimination against legal persons on the

ground of the ethnicity of their members, too. It is directly applicable to actions b y public

authorities and indirectly to actions by private actors t hrough the interpretation of private

law. Other prohibitions in public law apply to natural persons only, due to the nature of the

matter concerned.234

230 Section 2(2) (second sentence) SGB IX.

231 For example, under the terms of Section 7 Federal Civil Service Act, German nationality (or citizenship of

another EU-member or EEA-contracting state or a state with which Germany or the EU has concluded an

agreement on the recognition of respective professional qualifications) is a prerequisite for employment as a

civil servant.

232 For example, Section 164(2) SGB IX, referring to the AGG.

233 Article 3 in conjunction with Article 19(3) GG. It is a matter of case-by-case scrutiny which kinds of legal

persons are protected. See, for example, BVerfGE 111, 366 (372). Political parties are included, but not all

associations pursuing the rights of their members.

234 For example, the anti-discrimination clauses in the laws on the civil service or the Federal Personnel

Representation Act: BPersVG, 15 March 1974.