"Monthly Dose" Employment Law: 05/2024

The fifth edition of our Monthly Dose Employment Law in 2024 on current case law explains the judgments of

(1) the German Federal Labour Court (Bundesarbeitsgericht, BAG) dated 20 July 2023 (9 AZR 43/22) on protection against dismissal and transfer of a managing director's employment relationship,

(2) the BAG dated 20 October 2023 (7 ABR 34/20) on the application of the German Federal Holiday Act to third-party managers of a GmbH,

(3) the BAG dated 13 December 2023 (5 AZR 307/22) on Hypotax procedure for temporary secondments,

(4) the Regional Labour Court (Landesarbeitsgericht, LAG) Mecklenburg-Vorpommern dated 18 July 2023 (2 Sa 31/23) on the reemployment claim after the expiry of the notice period and conclusion of a settlement agreement if continued employment is possible,

(5) the LAG Hamm dated 23 January 2024 (6 Sa 1030/23) on the (in)effectiveness of the withdrawal of a company car due to a changed work assignment and

(6) the Court of Justice of the European Union (ECJ) dated 20 January 2024 (C-715/20) on strengthening the fundamental right to effective legal remedy for temporary employees.

1. Managing director activity on the basis of an employment relationship: Transfer of business and protection against dismissal under Section 613a (4) of the German Civil Code (BGB) and the German Protec-tion Against Dismissal Act (KSchG) (BAG judgement of 20 July 2023, 6 AZR 228/22)

In its judgement of 20 July 2023 (6 AZR 228/22), the Federal Labour Court (Bundesarbeitsgericht - BAG) had the opportunity to answer various legal questions regarding the performance of a managing director's organisational activity on the basis of an employment relationship, which arose in connection with the termination of the managing director's employment relationship in connection with a transfer of an undertaking in accordance with Section 613a of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

In the case underlying the decision, the parties were in dispute over the legal validity of a dismissal with notice of the managing director's employment relationship, which was declared by the defendant insolvency administrator in the insolvency proceedings concerning the company's assets, in which the plaintiff managing director had been active in this executive function, and in this context, whether the managing director's employment relationship had been transferred to the acquirer by way of a transfer of an undertaking.

The plaintiff had been employed by the insolvent debtor since 1 September 2000. In December 2013, he was appointed managing director. No separate managing director employment contract was concluded for this purpose, but only a ‘supplement to the employment contract’, in which a new working hours regulation and the existence of the other regulations of the employ-ment contract were agreed.

Insolvency proceedings were opened in respect of the assets of the insolvent debtor by order of 15 January 2020 and the defendant was appointed as insolvency administrator. The defendant subsequently succeeded in continuing the business operations of the insolvent debtor by means of a restructuring transfer of the essential assets to the new employer, who was also a defend-ant. On the morning of 16 January 2020, the insolvency administrator hand-ed the plaintiff a notice of termination of the employment relationship with effect from 30 April 2020. The plaintiff then resigned from his position as managing director on the afternoon of 16 January 2020. He subsequently filed a complaint against unfair dismissal and argued that the termination was invalid because it violated Section 1 of the German Unfair Dismissals Act (Kündigungsschutzgesetz, KSchG) and was therefore not socially justified for this reason alone. He also argued that the termination violated Section 613a (4) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) in view of the transfer of the employment relationship to the new employer.

The labour court granted the claim. The higher labour court granted the appeal of the defendant employer on the grounds that the dismissal did not violate Section 613a (4) BGB and that, in addition, the general protection against dismissal under the KSchG was not applicable in view of the organizational position of the plaintiff at the time of the dismissal pursuant to Section 14 (1) no. 1 KSchG. The Federal Labour Court allowed the plaintiff's appeal against the second-instance judgement and referred the case back to the Higher Labour Court for further clarification of the facts. According to the Federal Labour Court, it could not be ruled out that the employment relationship had been transferred from the insolvent debtor to the new employer by way of a transfer of an undertaking in accordance with Section 613a of the German Civil Code (Bürgerliches Gesetzbuch - BGB) and that the dismissal had therefore been subject to the special protection against dismissal in accordance with Section 613a (4) of the German Civil Code (BGB).

In its reasoning, the BAG stated that the dismissal was not subject to the general protection against dismissal under the KSchG in view of the fact that the plaintiff was still a director of the insolvent debtor at the time of receipt of the notice of termination in accordance with Section 14 (1) no. 1 of the KSchG. The plaintiff was still appointed as managing director of the insolvent debtor at the time of receipt of the notice of termination and he only resigned from his position as managing director after receipt of the notice. The scope of application of Section 14 (1) no. 1 of the German Unfair Dismissals Act (Kündigungsschutzgesetz – KSchG) was already opened at the time of the notice of termination with the position as managing director; regardless of the nature of the underlying employment relationship as an employment relationship or as a service relationship.

However, the plaintiff was still to be included in the scope of application of Section 613a BGB. Section 613a (1) BGB stipulates that, in principle, all em-ployment relationships are transferred to the purchaser. The plaintiff had performed his duties as managing director exclusively on the basis of an employment contract, as a service contract had never been concluded. The appointment as managing director alone does not establish a separate contractual relationship between the parties. This is evident from the principle of sep-aration under Section 38 (1) of the German Limited Liability Companies Act (GmbHG), according to which the existence of the relationship between the executive body and the employment relationship is independent of each oth-er. If the parties have agreed an employment relationship - as in this case - this remains in place during the period of office, with the proviso that the right of instruction under Section 106 of the German Industrial Code (GewO) is restricted for the duration of the appointment. Section 613a (4) of the German Civil Code (BGB) cannot be teleologically reduced to the effect that members of the executive body are to be excluded from the scope of applica-tion. The wording of the statutory provision covers all employment relationships, including that of the plaintiff. It cannot be inferred from the provision that certain employment relationships are to be excluded. Since the Higher Labour Court did not examine the requirements of Section 613a, Subsection 4, BGB, in its second-instance judgement, it must now do so.

Practical consequences

From the employer's point of view, this decision clearly shows that the ‘promotion’ of an employee to managing director of the employer's legal entity should regularly be associated with the conclusion of a separate managing director employment contract with the simultaneous cancellation of the previ-ous employment contract in order to avoid any labour law surprises when ter-minating the employment relationship. In addition, the decision once again sensitizes buyers in transactions concerning the acquisition of a business in accordance with Section 613a BGB to carefully examine the legal basis of the employment relationships of the managing directors of the target company in order to be able to exclude from an employment law perspective that the rele-vant employment relationships are to be qualified as employment relationships from an employment law perspective or to take into account the resulting risks in the determination of the purchase price.

2. External managing director of a limited liability company as an employee within the meaning of the Federal Leave Act (BUrlG) if he is so integrated into the employer's work processes that he is to be re-garded as an employee within the meaning of European law (BAG judgement of 25 July 2023, 9 AZR 43/22)

In its judgement of 25 July 2023 (9 AZR 43/22), the Federal Labour Court (Bundesarbeitsgericht – BAG) had to deal with the question of whether a third-party managing director can be considered an employee within the meaning of the Federal Leave Act (Bundesurlaubsgesetz – BUrlG) and therefore whether his or her holiday entitlements from the managing director em-ployment relationship are subject to the BUrlG.

In the case in question, the parties were in dispute over the compensation of holiday entitlements after the termination of the employment relationship of an external managing director.
The plaintiff had been employed by the defendant as an employee since 1 July 1993. She was appointed as the defendant's managing director on 19 July 2012. From 2018, the plaintiff was employed in an office belonging to a limited liability company that was separate from the defendant. The defendant took over certain service and consulting activities for Z GmbH and provid-ed ‘its managing director to the extent necessary’. The management of Z GmbH instructed the plaintiff to work from 7:00 a.m. to 6:00 p.m. every day. In the morning, the plaintiff was instructed to make cold calls and in the af-ternoon, she was supposed to make customer visits and carry out control and monitoring tasks on her own initiative. The plaintiff had to provide evidence of 40 telephone calls and 20 visits per week. According to the employment con-tract, the plaintiff was entitled to 33 days of annual leave, of which the plain-tiff took eleven days of her leave in 2019 and no days of leave in 2020. On 5 September 2019, the plaintiff resigned from her position as managing director and terminated her employment relationship with effect from 30 June 2020. The plaintiff had been unable to work since 30 August 2019 and submitted sick notes to the defendant.

After the defendant sued the plaintiff before the district court for repayment of bonuses, the plaintiff filed a counterclaim for compensation for holiday entitlements. The counterclaim was referred to the labour court by order of the district court.

The BAG granted the claim for holiday compensation. The plaintiff, as the defendant's external managing director, was entitled to holiday compensation for the remaining days of holiday from 2019 and 2020. The external manag-ing director's entitlement to holiday compensation is derived directly from Section 7 (4) of the Federal Holiday Act (BUrlG), according to which a holiday entitlement that can no longer be granted must be compensated. In principle, according to Section 1 of the German Federal Leave Act (BUrlG), every employee is entitled to paid holiday. Since the provision is based on a European directive, the European definition of an employee is decisive, regardless of whether the plaintiff is classified as an employee under national law. Accord-ing to the European definition of an employee, an employee is someone who works for another person for a certain period of time, according to the instructions of that person, for which he or she receives remuneration in return. According to the case law of the European Court of Justice, this can also apply to the management bodies of a company. The degree of dependence is to be taken into account and it is therefore necessary to determine the extent to which the member of the management body is free to organize his or her working hours and tasks and under what conditions he or she can be dis-missed.

In the specific case, the plaintiff was to be classified as an employee within the meaning of EU law, as she was given specific working hours and assigned specific tasks. In addition, the tasks were more those of a typical employee. The fact that the plaintiff had resigned from her position as managing director did not affect her holiday entitlement. According to Sections 1, 3 of the German Federal Holiday Act (BurlG), the only requirement for holiday entitlement is an existing employment relationship, regardless of whether work has actu-ally been performed or not. Furthermore, the plaintiff's resignation from the position of managing director did not make it impossible for her to fulfil her duties. Although the managing director is only required to perform the ser-vices agreed in her employment contract, the employment contract in this case included activities that could have been performed even without holding the position of managing director.

Practical consequences

With this decision, the Federal Labour Court continues its case law on the employment law classification of employment relationships with external managing directors and again clarifies that external managing directors of a limited liability company can also be classified as employees in the sense of employment law, provided that they rely on provisions based on European directives and that the managing directors are subject to a certain degree of in-struction. It is therefore necessary to carefully examine the extent to which the external managing director is subject to instructions and the conditions under which he can be dismissed – and, from the employer's point of view, to implement appropriate organizational measures if necessary in order to deny the external managing director the status of an employee under labour law in the specific employment relationship.

In this decision, the Federal Labour Court also left open the questions of the extent to which managing directors who are to be classified as employees must be informed of their existing, outstanding holiday entitlement and the possible expiry of holiday entitlement, and to what extent managing directors can fulfil this obligation themselves if necessary, or whether the shareholders' meeting would be responsible for this.

3. Hypotax procedure can be effective as a special type of net wage agreement in the case of temporary secondment abroad if there are no mandatory collective agreements to the contrary (BAG judgement of 13 December 2023, 5 AZR 307/22)

In its judgement of 13 December 2023 (5 AZR 307/22), the Federal Labour Court (Bundesarbeitsgericht - BAG) decided that a hypotax procedure can in principle be agreed in a legally effective manner, unless a different, mandatory collective agreement applies between the parties.

In the case in question, the parties were in dispute over the repayment of withheld amounts that the defendant had withheld from the plaintiff's salary in the amount of the hypothetical taxes that would have been incurred in Germany.

The plaintiff, who had been employed by the defendant in Hamburg since 1996, was sent to a sister company in France for a limited period from 1 July 2017 to 30 June 2019. In the employment contract, the parties referred to the collective wage agreement for the metal and electrical industry in Hamburg, according to which the plaintiff was paid. The plaintiff joined the trade union on 1 January 2018. In the secondment agreement, which was concluded in addition to the employment contract, the parties agreed that the allocation of the taxation of the remuneration received by the plaintiff during his secondment should be carried out in accordance with the so-called ‘tax equal-ization’ principle. Under this agreement, the defendant assumed the actual wage costs incurred during the secondment in France and withheld a wage tax from the plaintiff's remuneration in the amount of the wage tax that would have been incurred if the employment relationship had hypothetically continued in Germany during the secondment. The plaintiff was placed in the same tax position as if he had continued to work in Germany. The rules on the hypotax procedure were set out in the same form in a group works agreement. In its decision of 25 September 2019 (4 TaBV 52/18), the Munich Higher Labour Court (Landesarbeitsgericht – LAG) found that the rules on the hypotax procedure in the group works agreement were invalid due to the lack of regulatory competence of the parties to the works agreement. The plaintiff then sued for repayment of the amounts withheld in the years 2017 to 2019 in the amount of the hypothetical German wage tax, since in his opinion the defendant had wrongly withheld these.

The BAG partially ruled in favour of the plaintiff. The provisions of the se-condment agreement on the Hypotax procedure are, as a special type of net wage agreement, fundamentally valid, so that the deductions in the amount of the hypothetical tax were made correctly. However, this only applies to the period of secondment up to 31 December 2017, as from 2018 the collective agreement would have been applied in accordance with Section 4 (3) of the Collective Agreement Act (TVG), which would have resulted in a claim to the gross wage, which the defendant had not fully met.

As long as the plaintiff was not a member of the trade union and the collec-tive agreement was therefore not mandatory, the parties could have reached a different agreement. Therefore, the plaintiff was not entitled to any back payments for the period up to 31 December 2017. The parties had effectively agreed on the hypotax procedure. The fact that the group works agreement was declared invalid does not change this, as the hypotax agreement with the secondment agreement is based on an independent contractual basis. This agreement would have been constitutive. Therefore, the validity of the group works agreement has no influence on the specific facts of the case. The par-ties also did not want to make the group works agreement the basis of the agreement. In principle, it is possible that previous disputes under labour law may have a preclusive effect on subsequent disputes under individual law, but this can only apply if there is in fact a right of co-determination under labour law. Since the parties to the works agreement had no competence to regulate this area, the invalidity of the provision of the group works agree-ment could not have any influence on the individual contractual agreement.

From the time that the parties were both bound by the standardized collective agreement, the provision of the collective agreement according to which a certain gross salary is mandatory between the parties would apply directly. This agreement also applied during the foreign posting, as this was only temporary, and the focus of the work was still in Hamburg.

Practical consequences

In its judgement of 17 September 2022 (5 AZR 128/22), the Federal Labour Court (Bundesarbeitsgericht – BAG) continues its case law regarding the va-lidity of an individual tax equalisation agreement for the duration of a post-ing. At the same time, it uses this judgement to sensitise tariff bound em-ployers of the need to take into account the collective agreement provisions on the remuneration of employees during the posting when drafting the tax equalization agreement in concrete terms, since a hypotax arrangement can-not be effectively agreed if the relevant collective agreement provisions – as a rule – stipulate gross remuneration.

4. Right to reinstatement after expiry of the notice period and conclusion of a settlement agreement in the event of the possibility of continued employment (LAG Mecklenburg-Vorpommern, judgement of 18 July 2023, 2 Sa 31/23)

On 18 July 2023, the Higher Labour Court of Mecklenburg-Western Pomerania dealt with the question of whether an employee is entitled to reinstatement if the possibility of continued employment with the employer only arises after the expiry of the notice period for a dismissal for operational reasons and the conclusion of a settlement agreement.

The plaintiff was employed as a laboratory assistant in the defendant's pathology laboratory. By letter dated 18 January 2022, the defendant terminat-ed the employment relationship for operational reasons with effect from 28 February 2022. The plaintiff filed an action against unfair dismissal. Thereupon, the parties concluded a settlement agreement on 28 February 2022. Among other things, it was agreed that the employee would withdraw the action for protection against dismissal and that the defendant would pay the plaintiff a gross severance payment of EUR 10,000.00 for the loss of her job.

In March 2022, two female employees of the defendant terminated their employment relationships. Thereupon, the defendant offered a position for MTLA/BTLA on the website of the Federal Employment Agency as of 1 July 2022. The plaintiff became aware of this and then requested the defendant to conclude a new employment contract with her on the basis of the parties' previous employment relationship. This remained unsuccessful, which is why the plaintiff pursued her claim by means of a lawsuit.

In support of her claim, the plaintiff argued that the claim arose from post-contractual duties of care, while the defendant countered that reinstatement was ruled out after the conclusion of an effective termination agreement. The conditions under which reinstatement could be demanded, namely (i) the reason for the termination no longer existed within the notice period and/or (ii) an incorrect prognosis, were not met. Furthermore, the plaintiff did not have the qualifications required to fill the advertised position.

The Higher Labour Court of Mecklenburg-Western Pomerania confirmed the lower court's judgement, according to which a validly concluded settlement agreement precludes a claim for reinstatement.
In the case of dismissals for operational reasons, an employee may in principle have a claim to reinstatement if, between the notice of dismissal and the expiry of the notice period, an unforeseen opportunity for further employment arises for the employee. In this case, the claim arises from a contractual sec-ondary obligation under the still existing employment relationship. If the pos-sibility of continued employment arises only after the notice period has ex-pired, however, the employee has no right to reinstatement. The principles governing the right to reinstatement do not apply if a new causal process is set in motion after the notice period has expired. Unless the employer has created a certain basis of trust, the employee cannot demand reinstatement in the event of a business-related dismissal due to circumstances that arise only after the employment relationship has ended.

Furthermore, in the case in dispute, the effective settlement agreement precluded reemployment. Neither was there a declaration of avoidance or revocation by the plaintiff, nor were the principles of the subsequent loss of the basis of the transaction fulfilled, nor was the defendant even obliged to con-clude a new contract with the plaintiff under the aspect of good faith. In view of the gross severance payment of EUR 10,000, it was also not unreasonable for the plaintiff to adhere to the settlement agreement, since the amount exceeded the sum provided for in Section 1a of the German Unfair Dismissals Act (Kündigungsschutzgesetz, KSchG) in her case.

Practical consequences

The judgement of the Higher Labour Court of Mecklenburg-Western Pomerania is based on the established case law of the Federal Labour Court on the right to reinstatement. Employers are not obliged to reemploy recently dismissed employees after the conclusion of a settlement agreement and the occurrence of unforeseen vacancies after the expiry of the notice period. A settlement agreement draws a clear line under the existence of the employment relationship. A situation that could exceptionally give rise to a post-contractual obligation to re-employ an employee would have to be very com-prehensively justified from the employee's point of view.

5. Right to a company car for private use - invalid cancellation condition and cancellation proviso (LAG Hamm judgement of 23 January 2024, 6 Sa 1030/23)

In its judgement of 23 January 2024 (6 Sa 1030/23), the Higher Labour Court of Hamm dealt with the continuation of the provision of a company car for private use.

The plaintiff had been employed by the defendant as a sales manager in the marketing and sales division since February 2009 and had been given a company car for private use as part of his employment contract. The conditions (including criteria for business necessity) for the use of the company car were set out in various supplementary agreements to the contract. The entitlement to use the car was linked, among other things, to the performance of certain activities and to a mobility of at least 50% of the working time and provided for regular reviews. The defendant defined the functions of sales manager, after-sales manager and area sales manager as activities entitling the em-ployee to use the company car. In addition, the rules of use provided for a right of revocation for the defendant, whereby the reasons for revocation were (only) stated in keywords.

As part of a restructuring of the sales concept, the plaintiff's job changed on 1 January 2022 to become a sales partner for individual customers within the marketing and sales division, and his focus shifted to providing information, advice and support to the defendant's relevant individual customers by digital communication or telephone. In March 2023, the defendant finally carried out a review of the entitlement to use a company car, during which it found that the conditions for use set out in the contract supplements (namely a perma-nently high level of mobility, i.e. an absence from work of more than 50%) were no longer met.

The defendant then decided to withdraw the company car from the plaintiff as of 31 December 2023 and informed the plaintiff of this in writing on 24 April 2023. The plaintiff objected to the withdrawal of the company car and filed a lawsuit with the Dortmund Labour Court (ArbG) to continue using the company car. The Dortmund Labour Court dismissed the action with reference to the condition subsequent in accordance with Section 158 (2) of the Ger-man Civil Code (BGB). The conditions for the use of the company car were transparent and reasonable.

The plaintiff appealed, arguing that the conditions were unclear and that the review of the terms of use had not been carried out correctly. He also questioned the effectiveness of the cancellation clause.
The Higher Labour Court of Hamm allowed the appeal and ruled that the de-fendant was obliged to provide the plaintiff with a company car for business and private use even after 31 December 2023. The plaintiff's claim to the vehicle had not expired, as neither a condition subsequent nor an effective revocation existed. The provision in the transfer agreement regarding the business necessity of the vehicle was unclear and therefore invalid. It was not clear when ‘permanent high mobility’ existed and which trips with the compa-ny car were to be taken into account at all when considering the question of business absence. Furthermore, there was a lack of clarity as to how the quo-ta of 50% of working days was to be calculated exactly. The defendant had also not complied with the contractually agreed review period of two years.

The cancellation clause is also invalid. It allows the defendant to cancel the company car for organizational reasons, including a change in the transferred contractual duties. However, not every change in the work task constitutes a valid reason for withdrawing the use of the company car and the associated private use. However, according to Section 308 No. 4 of the German Civil Code (BGB), the agreement of a right of cancellation is only valid if it is rea-sonable for the other party to the contract, taking into account the interests of the user. The economic risk must not be transferred to the employee. Only organizational changes that would inevitably lead to a change in the tasks assigned under the employment contract and that would result in the neces-sity of a company car for the assigned tasks no longer being given could jus-tify a revocation. This was not expressed in the revocation clause.

Practical consequences

The judgement of the Higher Labour Court of Hamm clearly shows that employers must continue to exercise great care when determining the content and wording of the conditions for the provision of a company car and its revo-cation, in particular in order to meet the requirements of the statutory control of general terms and conditions with regard to the transparency requirement. If the operational requirement for the use of a company car is no longer applicable due to a change in the employer's activities, it is advisable from a practical point of view to agree on the cancellation of the company car in the relevant amendment agreement as an alternative to the cancellation of the company car in accordance with the company car guidelines.

6. Strengthening the fundamental right to an effective remedy for fixed-term employees (ECJ judgment of 20 February 2024, C-715/20)

In its judgement of 20 February 2024 (C-715/20), the ECJ addressed the legal inequality of treatment of fixed-term employees. The case concerned a national (Polish) regulation under which an employer is not obliged to inform a fixed-term employee of the reasons for a dismissal, unlike in the case of employees with an indefinite contract. In the view of the ECJ, this unequal treatment is in contradiction to Section 4 No. 1 of the Framework Agreement on Fixed-Term Work concluded on 18 March 1999 (hereinafter: Framework Agreement), which is contained in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. According to this, employees may not be treated less favorably in their ‘employment conditions’ than comparable employees in an employment relationship of indefinite duration solely because they have a fixed-term employment contract or a fixed-term employment relationship; unless the difference in treatment is justified on objective grounds.

The Polish government argued that the flexibility of the labour market was guaranteed by fixed-term contracts, but the ECJ considered this justification to be insufficient. It emphasized that the unequal treatment impaired access to legal protection and that the national regulation violated the fundamental right to an effective legal remedy under Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter: CFR). If the fixed-term worker is not informed of the reasons for the termination of his contract, he is deprived of information that is crucial for him in deciding whether to take legal action against the termination of the employment contract. If the em-ployee in question has doubts about the legality of the reason for the termi-nation, he has no choice but to challenge the termination before the compe-tent labour court, as this is the only way he can ensure that the court in-structs his employer to disclose the reason(s) for the termination if the em-ployer does not voluntarily disclose them to him on request. This is associated with a not inconsiderable risk of litigation; furthermore, the problem arises that it is difficult to present a coherent case due to the unknown reasons for the dismissal.

Furthermore, the distinction between fixed-term and open-ended employment contracts does not constitute sufficient justification for unequal treatment, as it is not based on concrete or specific circumstances.
This means that a fixed-term employee must also be informed of the reasons for the ordinary termination of his employment contract if national law re-quires such information to be provided to employees in an employment rela-tionship of indefinite duration.

Practical implications

The ECJ's decision is in line with its equal treatment case law with regard to employees in a fixed-term or an open-ended employment relationship. Ger-man termination law does not provide for the differentiation of Polish law in relation to the (non-)disclosure of the reasons for termination, which is linked to the fixed-term status of the employment relationship; nevertheless, the decision is directly relevant for employers who have agreed to the choice of Polish labour law in their employment contracts. Furthermore, it sensitives employers to the application of – possible future – statutory regulations with a different treatment of employees in a fixed-term or an indefinite employment relationship to the extent that employees in a fixed-term employment rela-tionship are to be treated equally with employees in an indefinite employment relationship with regard to the specific statutory subject matter – beyond the statutory regulations.

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