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BAG-issue to the ECJ: discrimination, the charging systems of public service younger workers?

The BAG has referred to the ECJ the question to determine whether the targeted life-ages base salary of the BAT has violated the prohibition on age discrimination, whether such an age discrimination in TVöD continue and whether and how such an age discrimination by the collective agreement parties - if necessary could be removed - retroactively.

The case:
applicant, born in 1962, has since 2004 worked for a supreme federal authority (Federal Railway Office). On the employment relationship are powerful reference clause, the provisions of these amendments as well as BAT and replaced in their respective collective agreements shall apply.

The BAT has been replaced on 10.01.2005 in the tariff area of the union by the TVöD. This does not look like the bat no compensation for life stages of life anymore, but rather builds on the work, professional experience and the performance of the workforce. The system reached the old age stage however, has been fully taken into account in the reconciliation of public employees in the TVöD way of vested rights.

The applicant regarded the linkage of the bat at the age levels of undue discrimination younger workers, who - would continue in TVöD - because of the acquis-maintaining reconciliation. She asked therefore, the highest age level of their pay band based remuneration. Labour Court and dismissed the LAG directed to this lawsuit.

On appeal by the applicant was the BAG of the decision and asked the ECJ under Article 267 of the Treaty, the question for a preliminary ruling on how the conflict between the primary law guaranteed general principle of equality and also primarily legally guaranteed right of collective negotiation, collective bargaining, which also their collective bargaining includes to solve is.

The questions:

+ + + specifically, the BAG know

* whether the life-age-related basic salary BAT of the prohibition of age discrimination (now Article 21, Section 1 GRC) as given expression by Directive 2000/78/EC injured
* whether such an age discrimination continues TVöD
* and whether and how such an age discrimination by the collective bargaining parties could be eliminated if necessary, retrospectively.

Background:
In a further process of the state of Berlin, which took the bat until 31.3.2010 application, it was essentially just to claims from the period before the new tariff law. Also in this case, the BAG asked the ECJ for a preliminary ruling (BAG, decision of 20.05.2010 - 6 AZR 148/09 [A]).

The current preliminary ruling from the BAG are possibly related to a decision of the Constitutional Court of 02.25.2010 (Case No.: 1 BvR 230/09). Then had the BAG in a process with points of contact to the mass dismissal policy violates the right of the terminated employee to fair trial (Article 101 paragraph 1 sentence 2 GG), by a preliminary ruling to the ECJ according. Article 234 para 3 EC had apart

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BAG: submission to the ECJ: right to information of rejected applicants to employers?

The BAG has referred to the ECJ the question to decide whether unsuccessful job applicants who wish to make a violation of the AGG claim can the employer request information on whether the other candidate / Has hired another candidate and is made on the basis of what criteria this setting. German law provides such a right to information not available. Perhaps it is clear from the anti-discrimination directives of the Community law.

The case:
1961, Russian-born applicant had unsuccessfully applied for an advertised by the defendants. The defendant had told her then not indicated whether they had hired another candidate to another candidate, and if so, which criteria for this decision have been decisive.

the applicant stated that they had fulfilled the requirements for the advertised position and was solely because of their gender, age and origin were not invited for an interview. Therefore, there is a violation of the AGG and the defendant must pay a reasonable compensation in money. Labour Court and LAG have dismissed the action. On appeal the appellant, the BAG to stay the proceedings and the ECJ the following question for a preliminary ruling:


The question: commands
"Does Community law, an applicant who demonstrates that he satisfies the conditions for an employer of the posts met, whose application has not been recognized, however, against the employer is entitled to ? Information to give, whether it has hired another candidate, and if so, is made on the basis of what criteria this setting


The reasons:
The Senate established the preliminary ruling from the fact that although the applicant on their gender, age and their origin was noted. They have failed to show any sufficient evidence, which can be a disadvantage because one in § 1 AGG suspect referred to ground and run gem. § 22 AGG to a burden of proof would be. Under national law, there was no claim of the plaintiff against the defendant on information on whether the post had been filled with a different candidate and if the basis of what Criteria.

On a final decision, however, prevented the Senate saw as the relevant anti-discrimination directives of Community law may be called for such a right to information. The interpretation of these guidelines is for the ECJ.