Hofmeister Hannes Herbert Viktor - Free University of Bolzano/Bozen

G. v. 18.05.2017 BGBl. I S. 1218 (Nr. 29) - Entry into force: 25 May 2017

The so-called Infrastructure fee law entered into force on 12 June 2015. However, its practical implementation has been put on hold until May 2017 due to an infringement procedure initiated by the EU Commission under Article 258 et seq. TFEU. An agreement on the changes necessary to ensure compliance with EU law has been reached in December 2016. The amendments made include the following:

- First, the Infrastructure fee law establishing the road fee was amended in order to allow for five different categories of vehicles (instead of three categories envisaged under the old scheme). This will provide the opportunity for a better differentiation of the road charge on the basis of environmental criteria. ‘The price of short-term vignettes – which are typically bought by foreign drivers – was reduced in relation to the annual rate. For the most environmentally friendly cars, a short-term vignette (for 10 days) costs only € 2.50, which is significantly less than € 5 originally proposed in 2015.

- Second, the vehicle tax is once again amended in order to ensure that the most environmentally friendly vehicles are given particularly favourable treatment in the annual vehicle tax’ (EU Commission, Press release 1 December 2016). In summary, environmentally friendly cars are now charged less and short term fees for foreign cars were reduced.

In light of these developments, the European Commission halted proceedings in February 2017, paving the way for the practical implementation of the law. However, the case will only be formally closed once the amending German legislation taking into account the Commission's legal concerns is adopted. This “compromise” between the Commission and the German government was subject to severe criticism by the European Parliament in a separate resolution because the most controversial aspect – the tax relief for German car owners – still exists. This ’inofficial political compromise’ (between Germany and the Commission) does not render the arrangement lawful – the task of deciding whether or not sth. is lawful is not up for the Commission to decide but rather for the ECJ under Article 19 EU.

Name of the Act

Gesetz zur Tarifeinheit – Tarifeinheitsgesetz
(Änderung des Tarifvertragsgesetz (TVG)

Date of Text (Adopted)

 

November July 3th, 2015

Type of text

 

Law / Bundesgesetz

Enacted by

Legislator

Reference to the Constitution (art)

Arts. 9 GG German basic law (Grundgesetz)

Subject area

Labour Law

Comment

Since July 10th 2015, the act to ensure the bargaining unity is in force (Tarifeinheitsgesetz), which added a new article to the Collective Agreements Act (§ 4a Tarifvertragsgesetz – TVG). The new regulation provides that in a company, in which collective agreements overlap, only the agreement of the union is valid, which represents the majority of employees. The regulation applies if several agreements cover the same employment group. It does not prevent collective agreements for specific groups of employees as long as the distinction between the groups is clear. The unions are to coordinate their responsibilities and apply their collective agreements for different employees. The explanatory memorandum states that avoiding the clash of collective agreements ensures the funnctioning of collective bargaining autonomy. Conflicts between collective agreements might endanger order and peace of the work environment. Competing unions may be forced to cooperate. The law does not directly regulate the right to labour dispute, but it is expected that strikes of (small) unions, which have as their objective a collective agreement, which can not be applied due to collision with a majority agreement, be regarded as disproportionate.

This regulation is constitutionally questionable. The freedom of association in art. 9 sec 3 GG includes collective bargaining and the right to strike. These rights entitle small and large unions irrespective of the number and character of their members. The new law does not only change the regulatory framework in which these rights can be exercised. Instead, certain collective agreements are declared inapplicable. The conclusion of a collective agreement, which is inapplicable, is worthless. Labour disputes for worthless agreements are not permitted. Minority unions are not longer able to collective bargaining. Thus, the new regulation affects freedom of association.

The freedom of association in art. 9 sec. 3 GG is guaranteed without reservation. Inherent limits require a constitutional value. Especially the reasoning in the explanatory memorandum does not convince. Supposed functions of collective bargaining can not be used to limit the freedom of collective bargaining. Autonomy can be excercised freely only limited by the rights of others. Freedom is hampered when it only serves to fulfill fixed purposes to the benefit of others. Especially because determination of these purposes is questionable. The freedom of association is to pursue own interests. The determination of these interests is an essential part of the autonomy. Other rights or values that would be harmed by an excessive exercise of this freedom must be found to justify its regulation. For instance, the freedom of collective bargaining of employers or competing unions could be endangered by a tattered tariff structure. Furthermore, there may be areas where escalating strike action would lead to unreasonable economic losses, such as in the health sector or other areas of public interest. If it were to avoid these actions, regulation should be limited to these areas.

In addition, the regulation poses problems with regard to proportionality. It is highly questionable whether a general threat to collective bargaining can outweigh the intervention in the freedom of collective bargaining. The same is true for the dreaded damage due to increased strike activity. To address these concerns, minority unions are granted procedural rights. They have the right to a hearing. They also have the - hardly significant – right to trace the rules of the majority collective agreement in a separate collective agreement. But it is still questionable whether this attenuation is sufficient.

The Federal Constitutional Court will soon decide on the constitutionality of the “Tarifeinheitsgesetz”.

Secondary sources/ doctrinal works (selection)

Wolfgang Ewert: Aushöhlung von Grundrechten der Berufs- und Spartengewerkschaften – Das Tarifeinheitsgesetz, NJW 2015, 2230–2235; Richard Giesen, Jens Kersten: Gesetzliche Tarfieinheit, ZfA 2015, 201–240; Christoph Hölscher: Das Tarifeinheitsgesetz: Kritik und Alternativen, ArbRAktuell 2015, 7–9.

Available Text

http://www.bgbl.de/xaver/bgbl/start.xav?start=%2F%2F*[%40attr_id%3D%27bgbl115s1130.pdf%27]#__bgbl__%2F%2F*[%40attr_id%3D%27bgbl115s1130.pdf%27]__1459616062587

 

Name of the Act

Zweites Gesetz zur Änderung des Staatsangehörigkeitsgesetzes

Date of entry into force of original text

January 1st, 2000

 

Date of Text (Adopted)

 

November 13th, 2014

Type of text

(name in English / name in the official language)

Law / Bundesgesetz

Level

Federal

Enacted by

Legislator

Reference to the Constitution (art)

Arts. 16 GG German basic law (Grundgesetz)

Subject area

Nationality Law

Comment

The latest amendment of the German Nationality Act, which came into force on December 20th, 2014, broke with an old principle of the German citizenship law. The fundamental reform of the nationality law in 1999 had already implemented elements of the territoriality principle (ius soli) to the formerly exclusive application of the principle of descent (ius sanguinis). In order to adhere to the principle of exclusive nationality, the acquisition of German nationality by territoriality was combined with an obligation to choose between the German and the parental foreign citizenship until the age of 23 years. The new law goes one step further and renounces the principle of exclusive nationality. In the future, dual nationality is accepted in German nationality law.

The purpose of the regulation from 1999 was to facilitate integration for children who were born and raised in Germany. However, the obligation to choose between the German and the foreign nationality required a difficult decision by lot of young "Germans by option" and led to loyalty conflicts. For some, it led to a conscious departure from the German nationality though they have made their lives in Germany. That contradicts the objective to integrate these persons into German society. Therefore all Germans raised in Germany now keep the citizenship without having to choose. Dual nationality is accepted.

The legal and political function of citizenship changes with the abandonment of the principle of exclusive nationality: nationality is not a criterion to assign someone to specific national law any more. This may cause some problems in (private) international law. These may be easily solved because previous regulations have never completely avoided multiple nationalities either (e.g. in mixed marriages). However, the reciprocal loyalty between State and citizen that exists in an exclusive membership of a political community is relativized. Instead, the acceptance of multiple nationalities recognizes transcultural identities. This leads to a duplication of civic and political rights and duties. Time will tell how to deal with related problems in Germany.

Secondary sources/ doctrinal works

Seyran Ateş, Gülay Bedir, LL.M. und Charlotte Steiling, LL.M.: Neues Staatsangehörigkeitsgesetz. Deutscher kann sein, wer auch Türke ist, in: Legal Tribune Online, 19.12.2014, http://www.lto.de/persistent/a_id/14177/;

Kay Heilbronner: Optionsregelung und doppelte Staatsangehörigkeit, in: ZAR 2013, 357;

Wolfang Mosbacher: Die reformierte Optionspflicht im Staatsangehörigkeitsrecht, in: NVwZ 2015, 268.

Available Text

http://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&;jumpTo=bgbl114s1714.pdf

Date of entry into force of original text

 

August 16, 2014

 

 

Date of Text (Adopted) 

August 11, 2014

Type of text (name in English / name in the official language)

Laws / Bundesgesetze

Level

Federal level

Enacted by

Legislator

Reference to the Constitution (art)

Arts. 3 and 9 GG German Basic Law (Grundgesetz)

Subject area

Labour Law

If the act implements a source of EU Law: cite the relevant EU legal source

 

No

Comment

In January 2015 German law introduced for the first time a general minimum wage of 8.50 EUR per hour. For some sectors, where a lower minimum wage already existed, there are transitional arrangements until 2017. In the future, a commission will adjust the level of the minimum wage. This commission is appointed by the federal government. It consists of a chairman, three employee representatives, three employer representatives and two non-voting scientific advisers. Exceptions to the minimum wage exist for vocational training, school- and study-related internships, minors, and newspaper delivery as well as for long-term unemployed during the first six months of their re-employment.

In practice, the law causes some problems, because it came into force without sufficient lead-time and documentation requirements place unexpected burdens. In addition, employers develop a great creativity when it comes to the definition of remunerated working hours and expenses that can be deducted from the minimum wage.

Apart from this, constitutional objections are expressed. Serious concerns exist regarding the freedom of association in art. 9 sec. 3 Basic Law (GG) and the freedom to exercise a trade or profession in art. 12 sec. 1 GG. The legal exceptions might lead to inconsistency and violate the principle of equal treatment of art. 3 sec. 1 GG.

The freedom of association in art. 9 sec 3 GG includes collective bargaining, which means the right of employers' and employees' associations to conclude collective agreements on salaries. The freedom to exercise a trade or profession in art. 12 sec. 1 GG includes the individual freedom of contract taking employment. The establishment of a minimum wage limits these freedoms, because salaries cannot be agreed below the minimum wage - neither through collective agreements nor individual contracts. The composition of the commission fixing the minimum wage with representatives of employers' and employees' associations does not alter this fact. It may improve the political acceptance of the minimum wage, but does not avoid the encroachment on fundamental rights.

However, these encroachments are justified by the social state principle (art. 20 sec. 1 GG), which includes the design of fair working conditions, the moderation of dependency relationships and an appropriate balance of wealth differences. The interference with existing collective agreements is mitigated by the transitional arrangements.

The exceptions must be justified by objective reasons in order not to lead to inconsistency, which could jeopardise the attainment of the law. The exception for long-term unemployed is to promote the re-entry into the profession, even if it runs the risk of "revolving-door-effect” when employees are regularly replaced with new long-term unemployed after six months. Vocational trainees and short-term interns fall under the special legal regulation on the educational andtraining system. The exclusion of unskilled minors is meant to avoid that those opt for unskilled work at the minimum wage instead of a sometimes poorly remunerated further education.

The special transitional arrangements for newspaper deliverers are difficult to understand in particular as other exceptions, e.g. for seasonal workers and taxi drivers, were discarded. A review by the Federal Constitutional Court is unavoidable and expected in the near future.

Secondary sources/ doctrinal works (if any)

Zeising / Weigert: Verfassungsmäßigkeit des Mindestlohngesetzes, in: Neue Zeitschrift für Arbeitsrecht 2015, page 15–22.

Preis / Ulber: Die Verfassungsmäßigkeit des allgemeinen gesetzlichen Mindestlohns – Rechtsgutachten, www.boeckler.de/pdf/gf_gutachten_preis_2014_04.pdf

Available Text

Text

Name of the Acts

1. Gesetz zur Änderung des Einkommensteuergesetzes in Umsetzung der Entscheidung des Bundesverfassungsgerichtes vom 7. Mai 2013

2. Gesetz zur Anpassung steuerlicher Regelungen an die Rechtsprechung des Bundesverfassungsgerichts

Date of entry into force of original text 

18.10.2009 

Date of Text 

July 15, 2013 / July 18, 2014

Type of text

Laws / Bundesgesetze

Level

Federal

Enacted by

Legislator

Reference to the Constitution

Arts. 3, 6 GG German basic law (Grundgesetz)

Subject area

Taxation; Family law

Comment

In its decision of May 7, 2013 the Federal Constitutional Court (Bundesverfassungsgericht) decided that the unequal treatment of registered civil partnerships and marriages regarding income splitting for spouses was unconstitutional.[1] Homosexual couples can choose the registered civil partnership to obtain a marriage-like legal status. But the income tax law allowed only spouses to be assessed jointly to income tax. The joint assessment leads to the application of the so-called “Splittingtarif”, which is more favorable than the ordinary assessment. In the view of the court, these provisions of the Income Tax Act violated the general right to equality before the law (Art. 3 sec. 1 of the Basic Law/GG), because there were no sufficiently weighty factual reasons for the unequal treatment. The specific protection of marriage and family in Art. 6 sec. 1 GG itself could not justify the unequal treatment of marriage and registered civil partnerships. The values enshrined in Art. 6 sec. 1 GG constituted a factual reason for differentiation that first and foremost allows to privilege marriage as compared to other ways of living together, which are characterised by a lesser measure of mutual commitments. If the privileged treatment of marriage includes that other forms of partnership that are structured in a similarly binding way were placed at a disadvantage, the mere reference to the requirement to protect the institution of marriage in Art. 6 GG did not, however, justify such a sustained differentiation in income tax regulation.

The decision met with opposition. It was controversial even within the Court. The decision was taken with 6:2 votes. The outvoted judges delivered a dissenting opinion. The criticism is primarily that the Court disregards the discretion of the legislator. The legislator may design a registered civil partnership for homosexual couples, which is similar to marriage in many ways but maintain differences in taxation regarding the traditional concept of family, which is still associated with children and the succession of generations.

Nevertheless, due to the decision of the Constitutional Court, the legislator was forced to align tax regulation for registered partners with spouses. With the "Act to amend the income tax law implementing the decision of the Federal Constitutional Court” the equal treatment in income tax was quickly implemented at the end of the 17th legislative period in July 2013. During the legislative process, the federal government had announced to examine whether further amendments were necessary and if necessary implement them in an ordinary legislative procedure at the beginning of the 18th legislative period.

This was done with the “Act for the adaptation of tax rules to the jurisdiction of the Federal Constitutional Court" from July 18, 2014. All tax laws have been adapted so that registered partnership and marriage are always mentioned simultaneously. The changes entered into force on July 24, 2014. So registered partnerships are treated equally to marriages in all tax matters. As the title of the legislation shows, impulsion for this development was not a political decision of the legislature or the government to transform society, but the Federal Constitutional Court with its extensive jurisdiction. The legislature saw itself as a mere executor of constitutional requirements.

Secondary sources

BVerfG, Order of 7 May 2013 – 2 BvR 909/06, 2 BvR 1981/06, 2 BvR 288/07

Available Text

- TEXT1

- TEXT2

 


[1] BVerfG, Order of 7 May 2013 – 2 BvR 909/06, 2 BvR 1981/06, 2 BvR 288/07.

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