Federal Labour Court, 13.04.2010, Ref. 9 AZR 113/09
Since the reform of the law of obligations, the new law on general terms and conditions has also applied. According to the definition of the law, general terms and conditions are "pre-formulated contractual conditions for a large number of contracts, which one contracting party imposes on the other contracting party when concluding a contract". General terms and conditions can therefore, as is generally assumed, not only become part of sales contracts, but also part of employment contracts.
For this reason, standardised employment contracts are also subject to the statutory regulations on general terms and conditions in Sections 305 - 310 BGB.
However, the review of a standard form employment contract is always carried out with regard to the special features applicable under labour law.
This means that general terms and conditions of employment contracts must be judged to be unreasonably disadvantageous and therefore invalid in accordance with Section 307 (1) sentence 2 BGB if this is required with regard to labour law regulations.
However, general provisions of the law on general terms and conditions must also be observed when reviewing general terms and conditions in employment contracts, such as the "transparency requirement".
This was enshrined in the general clause of the law on general terms and conditions (Section 307 BGB) in 2001 in the course of the modernisation of the law of obligations, after it had previously been developed as a judicial principle.
Accordingly, general terms and conditions must be formulated clearly and comprehensibly as a matter of principle, as otherwise they may disadvantage contractual partners.
Non-compliance with the transparency requirement, in particular by the employer, repeatedly leads to decisions before the labour courts.
In a highly regarded judgement, the Federal Labour Court ruled that a pre-formulated employment contract provision on the compensation of overtime was invalid due to the transparency requirement.
In a further decision, the Federal Labour Court had to rule on the pre-formulated clause according to which the employer could revoke the provision of a company car to the employee for economic reasons.
FactsThe plaintiff was a sales employee who had been provided with a company car that she was also authorised to use privately. The employment contract contained a form agreement which stipulated that the transfer of use could be cancelled due to economic necessity. After the plaintiff had only driven about half of the predicted kilometres with the car, the defendant revoked the transfer of use on the grounds that the use of the company car was uneconomical.
Federal Labour CourtAccording to the decision of the BAG, the cancellation clause of the employment contract was subject to evaluation under the law on general terms and conditions, as such a provision concerns the main performance obligations of the parties. In this respect, the clause was ineffective in accordance with Sections 307 (1), 308 No. 4 BGB, as it was not recognisable to the employee when the employer could consider economic reasons to revoke the granting of the company car to be given. The clause was therefore not drafted clearly and comprehensibly and unreasonably disadvantaged the employee.
Source: Federal Labor Court
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