Remedies and enforcement

• Author: Matthias Mahlmann
• Pages: 74-80

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6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Germany, the following procedures exist for enforcing the principle of equal treatment:

According to Section 13 AGG, employees have the right to complain to the competent body

within the enterprise. In the case of harassment, they have the right to withhold their

services insofar as this is necessary for their protection (Section 14 AG G).

There are n o special p rocedures for discrimination claims, only the general p rocedures.

Matters of employment are dealt with by labour courts, general contract law in civil courts

and public law matte rs (including social law, pu blic education and publi c employment) b y

administrative review. All these procedures finally lead to binding court decisions. There is

the possibility of alternative disput e resolution. There is increasing interest in Germany in

mediation procedures, which would encompass matters covered by discrimin ation law.

Administrative acts and court decisions are binding. The binding power of alternative

dispute resolution depends on the circumstanc es. Mediation often ( although not always)

leads to a binding settlement.

b) Barriers and other deterrents faced by litigants seeking redress

The litigants in discrimination cases face the same problems that any litigant faces. A

lawyer must be instructed in some procedures, such as higher instance civil proc edures.

However, there is a well-developed system of legal aid in Germany and no problems related

to infrastructure issues (location of courts etc).

There is no explicit time limit for a complaint, according to Section 13 AGG .

According to Sections 15(4) and 21(5) AGG, there is a time limit of two months for claiming

material or non-material damages in labour or civil law. The time limit, as set out in Section

15(4) AGG, begins with receipt of the rejection of a job application or promotion, or, in

other cases, with the knowledge of the disadvantageous behaviour.395

A claim can be brought after employment has ended, within the limits of general law,

especially the statute of limitations.396

The empirical research in this area indicates more informal, but important problems of

access to justice, am ong them the f ear endangering an employment relationship through

litigation and problems of proof, e.g. as to the causality of ground protected for a

395 Given the CJEU jurisprudence - among others - on the matter of effective pursuit of claims, there is an

argument that the rule must be interpreted in such a manner that the earliest beginning of the time limit is

the receipt of the refusal. Otherwise the rule is contrary to European Law, cf. Deinert, O. (2018), in:

Däubler, W. and Bertzbach, M. (eds.), Allgemeines Gleichbehandlungsgesetz: Handkommentar (4th ed.),

Baden - Baden, Nomos Verlag, § 15 para. 120. The shortness of the time limit should be a matter of

concern anyway. On this matter cf. the preliminary reference by Hamburg Higher Labour Court

(Landesarbeitsgericht) (LAG Hamburg), Hamburg/5 Sa 3/09, 3 June 2009: Court of Justice of the European

Union (CJEU), Judgment of 8 July 2010, Bulicke, C-246/09, EU:C:2010:418

http://curia.europa.eu/juris/celex.jsf?celex=62009CJ0246&lang1=en&type=TXT&ancre=. The CJEU ruled

that the principle of equivalence does not require Member States to extend their most favourable procedural

rules to actions for safeguarding rights deriving from EU law.

396 A dismissal protection case must be brought within three weeks, Section 4 KSchG; partly specific

regulations for disabled people, Sections 4 (fourth sentence) KSchG in conjunction with Section 168 SGB IX.