New Legal Situation: Formulation of Notices - Written Form vs. Text Form
Time-bar clauses are quite common in labour law and can be found in employment contracts as well as in collective labour agreements or works council agreements. One-step notices will regularly stipulate that claims become barred if not brought within a specific period of time; what may be referred to as so-called two-step notices, on the other hand, call for legal action to be taken after a certain period of notice elapses if the recipient fails to discharge the obligation at issue within such period. These clauses are therefore significantly more important than normal time-bar clauses; they must be officially taken into account by the labour courts and serve as the basis for finality and legal clarity.
Contracts will often stipulate that notices called for in time-bar clauses must be made in writing to be considered valid. This will regularly mean that a party must bring its claims in the form of a personally signed document addressed to the respective counterparty. According to the established case law of the Federal Labour Court, the written-form requirement contained in time-bar clauses may, however, be satisfied by facsimile or e-mail transmission of the corresponding notices without a personal signature unless a clause specifically provides otherwise. This is justified on the basis of the fact that the intent and purpose of these notices do not necessitate a personal signature and the circumstance that the provisions of law governing declaratory acts are not directly applicable to claims brought by virtue of quasi-legal acts.
Legal situation as of 1 October 2016
Up to now, written-form requirements pertaining to notices called for in time-bar clauses did not present a problem. However, the situation will change on 1 October 2016 when the revision of § 309 no. 13 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) goes into effect. According to the current version of § 309 no. 13 of the German Civil Code, clauses in business conditions are invalid if they require a form that is more stringent than the written form for notices or statements to be made to the user or a third party. According to § 309 no. 13 b) of the revised version of the German Civil Code, clauses are invalid if they require a form that is more stringent than the text form for notices or statements. Unlike the written form, the text form requires no personal signature; instead a legible statement on a permanent medium, i.e., on paper or an electronic recording medium, suffices. However, the author must be identified and it must be obvious where the content ends.
According to Art. 229 § 37 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB ), § 309 no. 13 b) of the new version of the German Civil Code will apply to contractual relationships entered into after 30 September 2016. Since the content of provisions of standard employment contracts governing notices is subject to §§ 307et seq. of the German Civil Code, such contracts may therefore no longer include standard formulations that call for notices to be made in writing as of 1 October 2016. Any such clauses governing notices would be in violation of § 309 no. 13 b) of the new version of the German Civil Code and therefore invalid. Clauses of standard employment contracts stipulating that claims must be brought within a certain period of time may require only that notification of such claims be made in text form to be valid.
Unlike the content of standard clauses governing notices in employment contracts, the content of clauses
of collective agreements governing notices is not subject to compliance with §§ 307 et seq. of the German Civil Code. According to § 310(4) sent. 1 of the German Civil Code, the content of collective agreements, and therefore any clauses governing notices as well, is not subject to compliance with §§ 307 et seq. of the German Civil Code. The content of clauses governing notices in collective agreements referred to in employment contracts is also not subject to compliance insofar as the clause containing the reference as a whole makes reference to a relevant collective agreement. As a result, clauses of collective agreements governing notices and clauses of employment contracts that as a whole make reference to a relevant collective agreement will not be affected by the revision of § 309 no. 13 of the German Civil Code.
In the case of clauses of employment contracts that make reference to a collective agreement that is not relevant or only to specific parts of a collective agreement, the content of the clauses referred to that govern notices is subject to compliance and must therefore also satisfy § 309 no. 13 b) of the new version of the German Civil Code. As a result, clauses governing notices that are referred to may not require a form that is more stringent than the text form. Otherwise the clause referred to must be modified accordingly or the clause of the employment contract that governs notices must be formulated individually.
Like comparable clauses in collective agreements, clauses governing notices in works council agreements do not fall under § 310(4) sent. 1 of the German Civil Code and will therefore also not be affected by the revision of § 309 no. 13 of the German Civil Code.
In summary, it can be concluded that standard clauses of employment contracts governing notices may in the future require only that notices be given in text form and not, as previously, in writing.
Clauses of employment contracts containing references to collective agreements that are not relevant or only to specific parts of a collective agreement should be modified accordingly.
Clauses of collective agreements governing notices, clauses of employment contracts that as a whole make reference to such clauses of a relevant collective agreement, clauses of works council agreements governing notices and standard employment contracts entered into prior to 1 October 2016 will not be affected by the revision of § 309 no. 13 of the German Civil Code.