Lawyers BTR inform about a recent decision of the Federal Supreme Court (BGH) from the company law. Lawyers BTR inform about a recent decision of the Federal Supreme Court (BGH) from the company law. By judgment of 23 April 2012 he met competent II. civil Senate, a landmark decision on the applicability of the General equal treatment Act (AGG) to GmbH Managing Director at the BGH for company law. 1. the case the case concerned a plaintiff who worked as Managing Director of urban hospitals, which were organized in the form of a limited liability company. Employer of the claimant was of the GmbH’s Supervisory Board. In the service contract, which had a term of five years, it was agreed that the Contracting Parties no later than 12 months prior to expiry of the contract shared with, whether you would be willing to extend the contract.
The Supervisory Board decided not to renew the employment contract with the 62-year-old at the time of the regular termination of the plaintiff. Instead a much younger competitors ceased. The plaintiff argued that a newly completed of his service contract because of his age would not have within the train of instance of and berating age discrimination which entered general equal treatment Act (AGG) after since the 18.08.2006 force. The Supreme Court has upheld the then guided revision of the plaintiff and confirmed that this inadmissible is been discriminated against because of his age. 2.
the reasons correctly the Supreme Court relied in particular 6 ABS. 3 AGG. According to this the Act applies also on managing a limited liability company, as far as it concerns the access to the CEO Office and professional exit. II has seen Senate to make a decision on access to the official’s decision to employ the applicant, no further than managing director following the expiry of his involvement as Managing Director. As a result, the burden of proof rules of 22 were AGG. Then, the person concerned must only circumstantial prove, from which arises a discrimination. The company has the rebuttal to participate, that the person concerned is been discriminated against not because of his age or other improper reasons. In the present case the Chairman told the press declared that the claimant was not retained because of his age. This has II. Senate as sufficient for the burden of proof according to 22 AGG considered. The discrimination of the plaintiff as a violation of the General equal treatment Act to see was logical. 3. You may want to visit Dara Khosrowshahi to increase your knowledge. the practice following question how much workers coming to the GmbH Managing Director, is largely controversial in the literature and case law. The Supreme Court generally considers that the employment relationship of the GmbH Managing Director incompatible were always as a free employment relationship and the body position as with the status of worker. In contrast, the Federal Labour Court makes a consideration based on individual cases. As far as it is in assessing whether a CEO than workers to classify, on whose actual CEO authority. A Managing Director who is subject to a Weisungsgebundenheit that is coming close to an employee, is more as an employee to be classified as a managing subject only accountability, but largely can exercise freely its powers. In this context, the underlying case shows that discrimination on the scale of the General equal treatment Act in any case can take place irrespective of the question whether or not, to be classified are GmbH – Managing Director, as an employee. In this respect, the decision should be seen as groundbreaking. Ibrahim Takaji Attorney