Federal Labour Court, 01.09.2010, Ref.: 5 AZR 517/09
General terms and conditions (pre-formulated contractual terms and conditions for a large number of contracts, which one contracting party imposes on the other contracting party when concluding a contract) can be unreasonably disadvantageous and therefore invalid in accordance with Section 307 (1) sentence 2 BGB if they are not formulated clearly and comprehensibly. This so-called "transparency requirement" was enshrined in the general clause of the law on general terms and conditions (Section 307 BGB) in 2001 as part of the modernisation of the law of obligations, having previously been developed as a judicial principle.
FactsIn the above-mentioned decision, the plaintiff was employed by the defendant and received 3000 euros gross remuneration for working 45 hours per week, divided into 38 normal working hours and 7 overtime hours. The plaintiff's employment contract with the defendant contained the following provisions:
The employee receives a gross monthly salary of EUR 3,000.00 for his work.
The gross salary is based on 45 working hours per week. Of these, 38 are normal hours and 7 are overtime hours. The overtime hours can be reduced and offset in full or in part at any time in the event of operational requirements.
The above remuneration shall also cover any necessary overtime worked by the employee."
The employee filed a lawsuit for the subsequent payment of 102 credit hours. The employer rejected this with reference to the remuneration regulation stipulated in the employment contract. The labour court subsequently upheld the claim for payment. Both the appeal and the defendant's appeal on points of law were unsuccessful.
Federal Labour CourtThe BAG confirmed the decisions of the lower courts in the judgement that has now been published and ruled that the pre-formulated provision on the compensation of overtime was invalid. Such a clause could only be effective if it was clear from the employment contract itself which work was to be covered by it. This was not the case with the clause and, as a result, it could not be categorised as clear and comprehensible. Since such a provision concerns the main performance obligations of the parties, it is ultimately subject to transparency control pursuant to Section 307 (3) sentence 2 BGB in accordance with Section 307 (1) sentence 2 BGB. According to this, the inappropriate disadvantage leading to the invalidity of a general business condition can result from the fact that the condition is not clear and understandable.
Source: Federal Labor Court
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