Time limit

According to § 14 para. 2 sentence 1 1st half. According to the TzBfG, the calendar limitation of an employment contract is permissible for a period of up to two years without there being an objective reason. According to § 14 para. 2 sentence 3, § 22 para. 1 TzBfG, the maximum duration of the fixed-term contract can be determined by a collective agreement in deviation from sentence 1. According to a decision of the Seventh Senate on March 25, 2009 ( 7 AZR 710/07 ), the regulation only covers collective agreements. These do not include the church labor law regulations decided by a labor law commission. As a result, the churches are not protected in their capacity by Art. 140 GG in conjunction with. Art. 137 Abs. 3 WRV violated the right to self-administration and self-determination guaranteed.

The opening limited to collective agreements in Section 14 Para. 2 sentence 3, § 22 para. 1 TzBfG also does not violate Art. 3 para. 1 GG. The Senate did not have to decide whether and, if so, under what conditions the legislature should act on the basis of the general principle of equality in Article 3 Paragraph. 1 GG is obliged to equate the labor law regulations that came about through the Third Way with collective bargaining standards when designing collective bargaining law. The in § 14 para. 2 sentence 3, § 22 para. The limitation to collective bargaining standards contained in 1 TzBfG is in any case justified by the differences in the way collective agreements and church labor law regulations are concluded. When it comes to collective agreements, the legislature can assume that these are not concluded against the will of the employees. The special procedure for church regulations that come about through the so-called Third Way does not offer any comparable guarantee. According to § 14 para. 1 Sentence 1 TzBfG, the limitation of an employment contract requires an objective reason to be effective.

The granting of a subsidy for training allowances for in-company training and further education for severely disabled people in accordance with Section 235a Paragraph. 1 SGB III by the Federal Employment Agency (now: Federal Agency) for employment does not, according to the judgment of the Seventh Senate of April 22, 2009 ( 7 AZR 96/08 ), alone constitute a factual reason for a fixed-term employment contract with a severely disabled person. 1 SGB III by the Federal Employment Agency (now: Federal Agency) for employment does not, according to the judgment of the Seventh Senate of April 22, 2009 ( 7 AZR 96/08 ), alone constitute a factual reason for a fixed-term employment contract with a severely disabled person. However, it is not enough if the employment merely gives the employee the opportunity to gain professional experience. According to § 14 para. 1 Sentence 2 No. 7 TzBfG, there is an objective reason for a fixed-term employment contract if the employee is paid from budget funds that are intended for temporary employment under budget law and he is employed accordingly.

It is not necessary that budget funds have already been allocated in a budget law at the time the fixed-term employment contract is concluded, from which the remuneration of the fixed-term employee can be met throughout the entire term of the contract. Rather, according to a decision of the Seventh Senate of April 22, 2009 ( 7 AZR 743/07 ), it is sufficient if, when the contract is concluded, the forecast is justified that the remuneration of the fixed-term employee can be met during the contract term from budget funds that are intended for intended for temporary employment. Such a forecast can be justified in the area of ​​state administration if the draft of a budget law, on the provisions of which the time limit could be based, is already in the legislative process or the content of the draft is certain and should be submitted to the parliamentary process in a timely manner. The requirements of Section 14 Para. 1 Sentence 2 No. 7 TzBfG does not apply if a budget only provides general funds for the employment of employees within the framework of fixed-term employment relationships.

It is necessary that the budget resources are allocated in the budget with a concrete substantive regulation on the basis of a comprehensible purpose. According to a decision of the Seventh Senate of September 2, 2009 ( 7 AZR 162/08 ), simply issuing a kw note dated to a future date for several positions in the public employer’s budget does not meet these requirements. The fact that a certain number of positions are to be eliminated at a later date does not say anything about whether these positions should be filled by temporary or permanent employees by then. A loss of positions can also be caused by not filling vacant positions, by issuing dismissals or by mutually terminating permanent employment relationships. A kw note alone does not justify the time limit according to Section 14 Paragraph. 1 Sentence 2 No. 1 TzBfG due to a temporary need for work performance. According to the established case law of the Federal Labor Court on the national law applicable before the General Equal Treatment Act (AGG) came into force on August 18, 2006, collective and individual contractual age limits of 60 years are effective for pilots.

They are based on an objective reason. § 14 para. 1 Sentence 1 TzBfG is justified because it serves to ensure flight safety. After the AGG comes into force, the provisions of this law are to be used when interpreting Section 14 Para. 1 Sentence 1 TzBfG must be taken into account. The collective bargaining age limit of 60 years for pilots results in a direct disadvantage due to age. §§ 1, 3 para. 1 AGG, which can be justified under the conditions of Sections 8 or 10 AGG. The provisions of the AGG that serve to implement Directive 2000/78/EC must be interpreted in accordance with Community law. This in turn requires an interpretation of the Community law requirements in Article 2 Paragraph. 5, Art. 4 para. 1 and Art. 6 para. 1 sentence 1 RL 2000/78/EC. The Seventh Senate therefore suspended the legal dispute in its decision of June 17, 2009 ( 7 AZR 112/08 (A) ) and asked the ECJ for a preliminary ruling on the interpretation of Community law.