Country report, gender equality : how are EU rules transposed into national law? : Germany 2023.
Date: 2023-12-18
Institutions: Directorate-General for Justice and Consumers
Subjects: Germany, age discrimination, anti-discriminatory measure, application of EU law, equal pay, equal treatment, gender equality, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

Germany 

2023 

 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.3 Gender Equality 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

Germany 

Jule Mulder 

Reporting period 1 January 2022 – 1 January 2023 

2023  Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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© European Union, 2023 

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 ISBN 978-92-68-02364-8 

ISSN 2600-0164  

doi: 10.2838/7762 

  DS-BD-23-012-EN-N 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

CONTENTS 
1 

2 

3 

4 

5 

6 

Introduction ............................................................................................... 5 
Basic structure of the national legal system ............................................ 5 
List of main legislation transposing and implementing the directives .......... 5 
Sources of law .................................................................................... 7 
  Main surveys, reports on gender equality and other issues ....................... 8 
General legal framework .......................................................................... 10 
Constitution ...................................................................................... 10 
Equal treatment legislation ................................................................. 11 
Implementation of central concepts ......................................................... 13 
Sex/gender/transgender .................................................................... 13 
Direct sex discrimination .................................................................... 19 
Indirect sex discrimination .................................................................. 21 
  Multiple discrimination and intersectional discrimination ......................... 26 
Positive action ................................................................................... 27 
Harassment and sexual harassment ..................................................... 35 
Instruction to discriminate .................................................................. 37 
Other forms of discrimination .............................................................. 37 
Evaluation of implementation .............................................................. 38 
  Remaining issues ............................................................................... 39 

Equal pay and equal treatment at work (Article 157 of the Treaty on the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54)
 ................................................................................................................. 40 
General (legal) context....................................................................... 40 
Equal pay ......................................................................................... 42 
Access to work, working conditions and dismissal .................................. 51 
Evaluation of implementation .............................................................. 54 
Remaining issues ............................................................................... 55 

Pregnancy, maternity, and leave related to work-life balance for workers 
(Directive 92/85, relevant provisions of Directives 2006/54, and 
Directive 2019/1158)............................................................................... 56 
General (legal) context....................................................................... 56 
Pregnancy and maternity protection .................................................... 57 
  Maternity leave ................................................................................. 63 
Adoption leave .................................................................................. 67 
Leave in relation to surrogacy ............................................................. 67 
Transposition of the Work-Life Balance Directive 2019/1158 in general .... 68 
Paternity leave .................................................................................. 69 
Parental leave ................................................................................... 70 
Carers’ leave ..................................................................................... 76 
  Time off for force majeure .................................................................. 79 
  Flexible working time arrangements (FWA) ........................................... 80 
  Legal protection provisions in the Work-Life Balance Directive 2019/1158  86 
  Evaluation of implementation .............................................................. 91 
  Remaining issues ............................................................................... 91 
Occupational social security schemes (Chapter 2 of Directive 2006/54) .. 93 
General (legal) context....................................................................... 93 
Direct and indirect discrimination ........................................................ 94 
Personal scope .................................................................................. 95 
  Material scope ................................................................................... 95 
Exclusions ........................................................................................ 95 
Laws and case law falling under the examples of sex discrimination 
mentioned in Article 9 of Directive 2006/54 .......................................... 96 
Actuarial factors ................................................................................ 96 
Difficulties ........................................................................................ 97 
Evaluation of implementation .............................................................. 97 
  Remaining issues ............................................................................... 97 

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Country report – Gender equality – Germany – 2023 

7 

8 

9 

Statutory schemes of social security (Directive 79/7) ............................. 98 
General (legal) context....................................................................... 98 
Implementation of the principle of equal treatment for men and women in 
matters of social security .................................................................... 99 
Personal scope .................................................................................. 99 
  Material scope ................................................................................... 99 
Exclusions ....................................................................................... 100 
Actuarial factors ............................................................................... 100 
Difficulties ....................................................................................... 100 
Evaluation of implementation ............................................................. 100 
Remaining issues .............................................................................. 101 

Self-employed workers (Directive 2010/41/EU and some relevant 
provisions of the Recast Directive) ......................................................... 102 
Implementation of Directive 2010/41/EU ............................................. 102 
Personal scope ................................................................................. 102 
  Material scope .................................................................................. 104 
Positive action .................................................................................. 104 
Social protection .............................................................................. 104 
  Maternity benefits............................................................................. 105 
Occupational social security ............................................................... 105 
Prohibition of discrimination ............................................................... 105 
Evaluation of implementation ............................................................. 106 
  Remaining issues .............................................................................. 106 
Goods and services (Directive 2004/113) .............................................. 107 
General (legal) context...................................................................... 107 
Prohibition of direct and indirect discrimination .................................... 109 
  Material scope .................................................................................. 110 
Exceptions ....................................................................................... 111 
Justification of differences in treatment ............................................... 111 
Actuarial factors ............................................................................... 112 
Interpretation of exception contained in Article 5(2) of Directive 2004/113
 ...................................................................................................... 112 
Positive action measures (Article 6 of Directive 2004/113) ..................... 113 
Specific problems related to pregnancy, maternity or parenthood ........... 113 
  Evaluation of implementation ............................................................. 113 
  Remaining issues .............................................................................. 113 

10  Violence against women and domestic violence in relation to the Istanbul 

Convention ............................................................................................. 114 
  General (legal) context...................................................................... 114 
  Ratification of the Istanbul Convention ................................................ 122 

11  Compliance and enforcement aspects (horizontal provisions of all 

directives) .............................................................................................. 124 
  General (legal) context...................................................................... 124 
  Victimisation .................................................................................... 125 
  Access to courts ............................................................................... 125 
  Horizontal effect of the applicable law ................................................. 127 
  Burden of proof ................................................................................ 127 
  Remedies and sanctions .................................................................... 128 
  Equality body ................................................................................... 131 
  Social partners ................................................................................. 132 
  Other relevant bodies........................................................................ 132 
  Evaluation of implementation ............................................................. 133 
  Remaining issues .............................................................................. 134 
12  Overall assessment ................................................................................ 135 
Bibliography ................................................................................................... 138 

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Country report – Gender equality – Germany – 2023 

1 

Introduction 

  Basic structure of the national legal system 

The German legal system is a federal constitutional system. The centre of legal thought 
and  practice  is  the  parliamentary  statute,  but  the  legislator  is  bound  by  the  Federal  or 
State  Constitution.  The  system  is  hierarchical:  federal  law  takes  precedence  over  state 
law, and the Federal Constitution takes precedence over the state constitutions.1 

Due to the federal system, legislative powers are distributed between the federal and the 
state (Land) level in Germany. Most legislative powers relating to the key issues addressed 
by the gender equality directives still rest at the federal level and the EU directives were 
implemented  by  federal  law.  However,  states  have  competences  in  relation  to  the  civil 
service and work in the public sector and disputes about gender equality are often linked 
to the states’ equality and higher education laws. 

Despite the importance of statutory law, areas of significance in respect of gender equality, 
such  as  the  multitude  of  social  security  schemes  or  many  aspects  of  working  life,  are 
shaped not only by federal and state law, but also by collective and works agreements or 
the internal regulations of professional organisations with a right to self-regulate. Although 
internal  regulations  and  collective  agreements  must  comply  with  constitutional 
requirements,  legal  scrutiny  is  often  limited  with  reference  to  the  parties’  collective 
freedom. 

In addition, case law plays an important role and decisions of the higher and federal courts 
may have great influence and impact. Courts  are established at the regional, state and 
federal level. Labour courts deal with discrimination in the field of employment, except for 
discrimination  within  the  civil  service  (which  falls  under  the  ambit  of  the  administrative 
courts). The civil courts decide on claims concerning the provision of goods and services 
under  civil  law,  while  the  administrative  courts  are  competent  for  claims  against  public 
authorities. There are also specialised courts for social and tax law. 

Every court in Germany is obliged to examine whether the laws and regulations it intends 
to apply are in accordance with the Constitution including the constitutional guarantee of 
gender equality. However, only the Federal Constitutional Court is competent to decide on 
the  constitutionality  (and  thus,  validity)  of  laws  enacted  by  the  Federal  Parliament 
(Bundestag). All other  courts questioning the  constitutionality  of parliamentary statutes 
have to refer to the Federal Constitutional Court for a decision (‘special judicial review of 
statutes’ or ‘referral’). Court decisions in violation of the principle of constitutional equality 
can also be subject to an annulment by the Federal Constitutional Court. The constitutional 
equality principle also influences the interpretation of statutory law, as courts are bound 
by the Constitution. 

  List of main legislation transposing and implementing the directives 

Legislation explicitly implementing directives: 

- 

- 

- 

General  Equal  Treatment  Act  of  14 August  2006,  Official  Journal  2006,  p. 1897, 
implementing Directives 2000/43, 2000/78, 2002/73 and 2004/113; 
Equal Treatment of Soldiers Act of 14 August 2006, Official Journal 2006, p. 1897, 
1904, implementing Directive 2002/73; and 
SEPA-accompanying  Act  of  3 April  2013,  Official  Journal  2013,  p. 610  (Gesetz  zur 
Begleitung  der  Verordnung  (EU)  Nr.  260/2012  zur  Festlegung  der  technischen 
Vorschriften und der Geschäftsanforderungen für Überweisungen und Lastschriften 

1   In 15 out of 16 of the German states (Bundesländer), State Constitutional Courts decide upon the 

compatibility of state laws with the states’ constitutions. 

5 

 
 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

in Euro und zur Änderung der Verordnung (EG) Nr. 924/2009 (SEPA-Begleitgesetz)), 
implementing  the  Test-Achats  ruling  of  the  CJEU  and  thus,  implementing 
Directive 2004/113. 

Legislation with relevance for key issues of the directives: 

- 

- 

- 

- 
- 
- 
- 

- 

- 

- 
- 

- 

- 

- 

- 

- 

- 
- 

- 

- 
- 

- 

- 

Act on the equality of female and male soldiers of 27 December 2004, Official Journal 
2004, p. 3822; 
Act  on  the  equal  participation  of  women  and  men  in  leading  positions  of  private 
companies and in the civil service  (FüPoG) of 24 April 2015, Official Journal 2015, 
p. 642; 
Act  on  the  additions  and  modifications  of  the  rules  on  the  equal  participation  of 
women  and  men  in  leading  positions  of  private  companies  and  in  the  civil  service 
(Gesetz  zur  Ergänzung  und  Änderung  der  Regelungen  für  die  gleichberechtigte 
Teilhabe  von  Frauen  an  Führungspositionen  in  der  Privatwirtschaft  und  im 
öffentlichen  Dienst)  of  7  August  2021,  Official  Journal  2021  (BGBl  I  Nr  51)  page 
3311; 
Federal Equality Act of 24 April 2015, Official Journal 2015, p. 642; 
Appointments to Federal Bodies Act of 24 April 2015, Official Journal 2015, p. 642; 
Pay Transparency Act of 30 June 2017, Official Journal 2017, p. 2152; 
Part-Time  and  Fixed-Term  Employment  Act  of  21 December  2000,  Official  Journal 
2000, p. 1966; 
Act on the further development of part-time work – introduction of bridge part-time 
work of 11 December 2018, Official Journal 2018, p. 2384; 
Nursing  Professions  Act  of  17 July  2017,  entering  into  force  on  1 January  2020, 
Official Journal 2017, p. 2581; 
Maternity Protection Act of 23 May 2017, Official Journal 2017, p. 1228; 
Federal  Parental  Allowances  and  Parental  Leave  Act  of  5 December  2006,  Official 
Journal 2006, p. 2748; 
Act on the better reconciliation of family, home care and work of 23 December 2014 
(amending the 2008 Home Care Leave Act and the 2012 Family Home Care Leave 
Act), Official Journal 2014, p. 2462; 
Act on the regulation of a general minimum wage of 11 August 2014, Official Journal 
2014, p. 1348; 
Occupational  Pension  Schemes  Act  of  19 December  1974,  Official  Journal  1974, 
p. 3610; 
Act on the improvement of services of the statutory pension insurance schemes of 
23 June 2014, Official Journal 2014, 787; 
Act on performance improvement and stabilisation in the statutory pension schemes 
of 28 November 2018, Official Journal 2018, p. 2016; 
Protection Against Violence Act of 11 December 2001, Official Journal 2001, p. 3513; 
Act on the establishment and operation of a state-wide telephone helpline ‘Violence 
Against Women’ of 7 March 2012, Official Journal 2012, p. 448; 
Fiftieth law on amendments to the Penal Code – improvement of the protection of 
sexual autonomy of 4 November 2016, Official Journal 2016, p. 2460; 
Transsexuals Act of 10 September 1980, Official Journal 1980, p. 1654; 
Law on Amending the Information to be Recorded in the Birth Register (Amendments 
to the Civil Status Act) of 18 December 2018, Official Journal 2018, p. 2635; 
Works  Constitution  Act  of  15  January  1972,  Section 75(1),  Official  Journal  1972, 
p. 32; and 
State  Anti-Discrimination  Act  (Berlin)  of  20  June  2020,  76(29)  Official  Journal  for 
Berlin 2020, p. 532. 

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Country report – Gender equality – Germany – 2023 

  Sources of law 

The  main  sources  of  gender  equality  law  are  the  constitutional  guarantee  of  gender 
equality and the constitutional prohibition of sex discrimination as well as their statutory 
specification by the Federal Equality Act and the equality statutes of the states covering 
the civil service. The requirements of the Constitution inspired some amendments to the 
states’  higher  education  laws,  explicitly  implementing  the  obligation  of  universities  to 
further gender equality, i.e. by affirmative action or by setting guidelines against sexual 
harassment and discrimination on the grounds of sex/gender. 

European gender equality law is an important source of German gender equality law. While 
full engagement with EU law is sometimes lacking, national courts at times refer to CJEU 
case law when interpreting the national law implementing the directives (i.e. General Equal 
Treatment  Act,  the  Equal  Treatment  of  Soldiers  Act,  and  the  Pay  Transparency  Act)  or 
when applying Article 157 TFEU directly. 

For a long time, international human rights treaties covering prohibitions  of  sex/gender 
discrimination  were  rarely  used  as  a  source  of  gender  equality  law.  This  is  surprising 
because ratified international human rights treaties are in force in Germany and have the 
status of a federal statute, i.e. they take precedence over all sub-statutory legal norms as 
well as the entire state law including the states’ constitutions.  Being a moderate dualist 
State, international treaties can also impact the interpretation of domestic law, including 
the Constitution. There is much discussion as to whether human rights treaties that have 
legal  force  equal  to  a  federal  statute  are  actually  binding  or  directly  applicable  or  even 
create subjective rights, although there is no mistake about their legally binding nature 
and the fact that they contain obligations for all public authorities on all levels – federal, 
state and local. The question on whether individuals can claim subjective rights has to be 
answered with regard to individual cases, but where there is the possibility to instigate an 
individual complaint procedure on an international level, that should be taken as a strong 
indication that subjective rights can be claimed. 

Beyond the level of constitutional, European and statutory law, there are other regulations 
that  are  important  sources  of  law  concerning  gender  equality  issues.  Important  sub-
statutory regulations are the internal regulations of professional organisations, the internal 
regulations  of  professional  pension  funds,  and  the  internal  regulations  of  public 
institutions, such as universities or public foundations, all of them with a (constitutional) 
right to self-regulate. In working life, collective agreements that are declared universally 
applicable constitute an important source of law. 

Although the German legal system has a civil law system, court decisions play an important 
role as they determine the precise content of the law. Lower courts regularly quote federal 
courts’ decisions and federal courts reference their own previous decisions. The case law 
of the  federal courts,  especially the Federal Constitutional Court, are  also often lengthy 
and exploratory. 

Equality bodies have no competence to decide upon gender equality cases and, therefore, 
cannot be a source of law (they do not even have standing in court). Equality bodies can 
do no more than encourage victims of gender-based discrimination to take legal action or 
commission  and  publish  expert  opinions  developing  legal  argumentations  strengthening 
gender equality. 

The opinions of legal experts are not a source of law and there is no authoritative scholarly 
interpretation of statutes. However, the influence and impact of legal literature (e.g. legal 
commentaries) is very significant. 

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Country report – Gender equality – Germany – 2023 

  Main surveys, reports on gender equality and other issues 

The authors of the Second Gender Equality Report of the Federal Government2 stated that 
gender  equality  has  not  yet  been  achieved  in  Germany.  In  their  view,  one  of  the  main 
reasons  for this failure  is the way in which  society (and the legal framework)  organises 
paid  work  (including  paid  care  work)  and  unpaid  care  work.  The  authors  identified  a 
‘gender care gap’ illustrating structural inequalities between men and women. This shows 
that, on the one hand, the concept of ‘reconciliation’ deserves more attention as a central 
concept of gender equality, and on the other, that ‘reconciliation’ does not go far enough. 

In 2019, the Federal Anti-Discrimination Agency published an expert study on the risks of 
algorithmic  discrimination,  which  outlined  several  potential  examples  of  algorithmic 
discrimination.3  In  2019,  the  Berlin  State  anti-discrimination  body  published  an 
assessment  of  algorithms  and  their  risk  of  discrimination.4  The  author,  Judith  Scheer, 
pointed  out  that,  particularly  in  the  field  of  anti-discrimination  work,  in  addition  to  the 
issues of hate speech, cyber mobbing and fake news, there was a lack of research on and 
knowledge about the mutual impacts of discrimination and digitisation, and the effects of 
these on individuals and society. A study concerned with the application of the  General 
Equal Treatment Act was published in April 2023.5 

The above-mentioned findings were confirmed by a 2019 survey on sexual harassment in 
the  workplace,6  in  which  13 %  of  female  and  5 %  of  male  employees  reported  sexual 
harassment (a broad majority experienced this form of discrimination more than once), 
mainly conducted by third parties such as customers, patients or clients. Over 80 % of the 
perpetrators  were  male.  More  than  40 %  of  all  employees  had  no  idea  where  to  report 
sexual harassment in the enterprises they were working for. 

Several studies on the implementation of the 2015 Act on the equal participation of women 
and  men  in  leading  positions  of  private  companies  and  in  the  civil  service,  focusing  on 
executive and supervisory boards of private companies, do not paint a positive picture. 
One author points out that the statutory gender quota for supervisory boards covering 107 
companies  in  Germany  describes  the  new  glass  ceiling  for  women:  although  the  30 % 
gender quota is just about fulfilled by the 160 most important DAX-index listed companies 
in  terms  of  the  statistical  average,  27  of  these  companies  appointed  only  one  female 
supervisory board member and 23 appointed none.7 Without enforceable legal obligations, 
companies do not seem eager to increase the number of female board members. This is 
especially true for executive boards: 75 % of all important companies appointed no female 
executive  board  members,  and  only  7  out  of  the  160  most  important  DAX-index  listed 

2   Federal Government (2017), Second Gender Equality Report, Berlin. Documents are available at: 

https://www.gleichstellungsbericht.de/. The committee of experts consisted of Eva Kocher (chair), Thomas 
Beyer, Eva Blome, Holger Bonin, Ute Klammer, Uta Meier-Gräwe, Helmut Rainer, Stephan Rixen, Christina 
Schildmann, Carsten Wippermann, Anne Wizorek, Aysel Yollu-Tok.  

3   Orwat, C. (2019), Diskriminierungsrisiken durch Verwendung von Algorithmen, Federal Anti-Discrimination 

Agency, available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/studie_disk
riminierungsrisiken_durch_verwendung_von_algorithmen.html.  

4   Scheer, J. (2019), ‘Algorithmen und ihr Diskriminierungsrisiko. Eine erste Bestandsaufnahme’ (Algorithms 
and their Risk of Discrimination. A first inventory), published by the Berlin State anti-discrimination body, 
available at: https://www.berlin.de/sen/lads/ueber-uns/materialien/. Further studies are forthcoming.  

5   Spiecker, I. and V. Towfigh, E. (2022), The General Equal Treatment Act and protection against 

discrimination by algorithmic decision-making systems Federal Anti-Discrimination Agency, available at: 
Antidiskriminierungsstelle - Forschungsprojekte - Das Allgemeine Gleichbehandlungsgesetz und der Schutz 
vor Diskriminierung durch algorithmische Entscheidungssysteme. 

6   See Schröttle, M., Meshkova, K. and Lehmann, C. (2019) Tackling sexual harassment in the workplace – 

strategic solutions and interventions, Federal Anti-Discrimination Agency, available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/umgang_mi
t_sexueller_belaestigung_am_arbeitsplatz.pdf?__blob=publicationFile&v=5.  

7   Weckes, M. (2019), ‘Strahlungsarmes “Quötchen”. Die Geschlechterverteilung in Aufsichtsrat und Vorstand 

2019’, Mitbestimmungsreport No. 48, https://www.boeckler.de/fpdf/HBS-
007123/p_mbf_report_2019_48.pdf.  

8 

 
 
 
 
 
Country report – Gender equality – Germany – 2023 

companies  appointed  more  than  one  –  meaning  two.  Another  2019  study  shows  that 
women have particularly low chances of promotion to leadership positions in the financial 
sector: only around 10 % of executive board members at the 100 most important banks 
and 60 most important insurance companies in Germany are female, while the proportion 
of women on the supervisory boards of these institutions has stagnated at 23 %.8 Given 
such slow progress, it would take 80 years to achieve gender parity on company boards 
in the German financial and insurance sector. Extremely inflexible working times prove to 
be a special obstacle to female leadership here. The authors of a third analysis reach the 
conclusion  that  tailored  policy  packages  are  needed  in  equal  employment  policymaking 
concerning  leadership  and  board  positions,  including  strong  symbolic  role  models, 
procedural  and  evaluative  instruments,  reporting  obligations  and  awareness  raising,  as 
well as specific and effective sanctions or, at least, the plausible threat of such sanctions.9 

A study concerned with the protection of people who do not identify as male or female, 
was  published  in  2020.10  The  study  considers  the  far-reaching  consequences  of  the 
Constitutional Court’s decision that there is a positive entitlement to positive recognition 
of  other  identities  (‘divers’)  beyond  male  and  female  within  the  Civil  Status  Act.11  It 
explicitly recognises the need to amend laws that directly refer to the male and/or female 
sex. However, it also notes that the constitutional conformity of some regulations, such as 
the protection in relation to pregnancy and maternity could be ensured through case law. 
Another report made recommendations in the field of employment.12 

As  outlined  in  detail  throughout  the  report,  the  EU  directives  have  not  been  fully 
implemented. The General Equal Treatment Act (AGG) has not been amended significantly 
since 2006 and there are various gaps within the protection. This includes the exclusion 
of dismissals from the scope of application of the AGG; the lack of a right to return after 
parental  leave;  the  resistance  to  implementing  Directive 2010/41/EU;  the  restriction  of 
legal protection to ‘mass contracts’ regarding the provision of goods and services; and the 
restriction  of  the  prohibition  of  sexual  harassment  to  the  area  of  employment.  Further, 
there are detrimental misconceptions in the formal legislative implementation, such as the 
requirement of fault of the employer or the vast possibilities of justification by collective 
agreements ignorant of the question whether they contain discriminatory job classification 
systems or not. The authors of a comprehensive evaluation of the AGG13 also pointed out 
that the CJEU rulings in Coleman and Feryn are not implemented, and gender identity is 
not explicitly included in the prohibition of gender discrimination. Moreover, positive action 
measures, although covered by the AGG, are hardly ever used in practice and enforcement 
provisions have several weaknesses. 

8   Holst, E. and Wrohlich, K. (2019), ‘Frauen in Spitzengremien von Banken und Versicherungen: Dynamik 

kommt nun auch in Aufsichtsräten zum Erliegen’ in DIW Wochenbericht No. 3, pp. 38-50, 
https://www.diw.de/documents/publikationen/73/diw_01.c.611752.de/19-3-3.pdf.  

9   Bothfeld, S. and Rouault, S. (2019), Gender quotas for corporate boards – Why authority does not suffice. 
A comparative analysis of policy package design, Berlin, Harriet Taylor Mill Institute, https://www.htmi.hwr-
berlin.de/fileadmin/institut-htmi/Ver%C3%B6ffentlichungen/Discussion_Paper/DiscPap37.pdf. 

10   Dutta, A. and Fornasier, M. (2020), Jenseits von männlich und weiblich - Menschen mit Varianten der 

Geschlechtsentwicklung im Arbeitsrecht und öffentlichen Dienstrecht des Bundes, Berlin: 
Antidiskriminierungsstelle des Bundes. 

11   See Section 3.2.1, below. 
12   Fütty, T.J.; Höhne, M.S.; Llaveria Caselles, E. (2020), Geschlechterdiversität in Beschäftigung und Beruf, 

Berlin: Antidiskriminierungsstelle des Bundes. 

13   Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/AGG/agg_evaluation.p
df?__blob=publicationFile&v=12.  

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Country report – Gender equality – Germany – 2023 

2 

General legal framework 

  Constitution 

2.1.1  Constitutional ban on sex discrimination 

The German Constitution, the Basic Law, explicitly bans sex discrimination. Article 3(3) of 
the Basic  Law prohibits any treatment that disadvantages  or privileges a person on the 
grounds of sex, descent, race, language, origin, religion and religious or political opinion 
as  well  as  any  disadvantages  due  to  disability.  Following  a  judgment  of  the  Federal 
Constitutional Court, the prohibition of discrimination on the grounds of sex also covers 
gender related discrimination including discrimination on the grounds of gender identity.14 

2.1.2  Other constitutional protection of equality between men and women 

Article 3(2) of the German Constitution explicitly provides for equality between men and 
women. This includes the state’s obligation to further the effective implementation of this 
principle  of  equality  and  to  eliminate  existing  disadvantages.15  Within  that  context,  not 
only  biological  differences  but  gender  roles  that  can  disadvantage  women  or  men  are 
relevant, as Article 3(2) aims at the ‘approximation of living conditions’.16 In its landmark 
decision on the recognition and formal registration of a third gender identity, the Federal 
Constitutional Court emphasised that the added value of Article 3(2) in comparison to the 
general prohibition of sex/gender discrimination in Article 3(3) was just the obligation of 
an effective implementation of a substantive principle of gender equality.17 

Article 6(4) of the German Constitution protects mothers. Accordingly, every mother shall 
be  entitled  to  the  protection  and  care  of  the  community.  The  provision  can  be  relevant 
within the context of pregnancy, maternity and breastfeeding. 

Whether  the  constitutional  prohibition  of  sex  discrimination  and  the  principle  of  gender 
equality  can  be  invoked  in  horizontal  relations  is  controversial.18  Without  doubt,  the 
Constitution is binding on the state and its authorities. To what extent and in which ways 
the  prohibition  of  sex  discrimination  applies  to  civil  and  labour  law  cases  and  is  thus 
(indirectly)  binding  on  other  citizens  is  subject  to  legal  controversy.  Generally,  the 
fundamental  rights  enshrined  in  the  Constitution  have  only  indirect  horizontal  effect, 
meaning  that  they  are  not  directly  binding  between  private  parties.  However,  in  its 
established case law, the Federal Constitutional Court states that the fundamental rights 
unfold  their  effect  as  constitutional  ‘value  decisions’  by  ‘radiating’  into  private  law 
relationships and, thus, the courts are obliged to enforce them when interpreting civil and 
labour law, in particular via general clauses under civil law and indefinite legal terms.19 

14   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16, 

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr2019
16en.html. 

15   See Baer, S., Markard, N. (2018), ‘Article 3(2) of the Basic Law’, in Mangoldt/Klein/Starck (Begr.), 

Grundgesetz. Kommentar, 7th ed., para 355; Sacksofsky, U. (2002), ‘Article 3(2)(3) of the Basic Law’ in 
D. C. Umbach/T. Clemens (Hrsg.), Grundgesetz. Mitarbeiterkommentar, Band I, para 349, 353.  

16   Federal Constitutional Court, judgment of 28 January 1992, 1 BvR 1025/82; judgment of 16 November 

1993, 1 BvR 258/86. 

17   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16, 

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr2019
16en.html. 

18   For an overview and more innovative approach see Uerpmann-Wittzack, R. (2008), ‘Gleiche Freiheit im 
Verhältnis zwischen Privaten: Artikel 3 Abs. 3 GG als unterschätzte Verfassungsnorm’ (Equal freedom in 
horizontal relations: Article 3(3) of the Basic Law as an underestimated constitutional norm) Zeitschrift für 
ausländisches öffentliches Recht und Völkerrecht, vol. 68, pp. 359-370, available at: 
https://www.zaoerv.de/68_2008/vol68.cfm.  

19   Federal Constitutional Court, judgment of 15 January 1958, 1 BvR 400/51.  

10 

 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

The  Constitutional  Court  has  also  demonstrated  an  increased  interest  in  the  impact  of 
powerful private actors on the exercise of fundamental rights. Within the context of football 
stadium bans it was considered that the indirect horizonal effect of Article 3(1) (equality 
before the law) may hinder private parties from excluding individuals from private spaces 
that  are  otherwise  open  to  the  public,  if  the  exclusion  seriously  impacts  the  person’s 
participation  in  social  life.  Accordingly,  organisers  must  not  use  their  decision-making 
powers to exclude certain persons from such public events without an objective reason.20 
The  constitutional  equality  provisions  are  also  relevant  within  the  context  of  collective 
bargaining. 

  Equal treatment legislation 

Germany  has  specific  equal  treatment  legislation,  namely  the  General  Equal  Treatment 
Act,21  the  Equal  Treatment  of  Soldiers  Act,22  the  Pay  Transparency  Act,23  the  Federal 
Equality  Act24  and  the  equality  statutes  of  the  states25  as  well  as  state  legislation 
concerning higher education.26 

All these laws explicitly prohibit sex/gender discrimination. The General Equal Treatment 
Act and the Equal Treatment of Soldiers Act also prohibits discrimination based on race or 
ethnic origin, religion or belief (worldview), disability, age or sexual identity. They are the 
primary legal statutes to implement all the EU equality directives. 

The Federal Equality Act and the state equality statutes also focus on temporary measures, 
reconciliation,  and  women  with  disabilities.  Some  state  legislation  concerning  higher 
education  aims  for  gender  equality  and  covers  the  prohibition  of  discrimination  on  the 
grounds of disability. The General Equal Treatment Act, which implements the directives, 
covers  a  broad  prohibition  of  sex/gender  discrimination  as  well  as  other  discrimination 
grounds, namely race, ethnic origin, religion, belief, disability, age and sexual orientation. 
The Equal Treatment of Soldiers Act contains the same definitions of direct and indirect 
discrimination,  (sexual)  harassment,  instruction  to  discriminate,  multiple  discrimination 
and positive action measures as the General Equal Treatment Act; moreover, it covers all 
other discrimination grounds set out in the EU  directives with the  exception of age and 
some extended justifications concerning disability. 

The  Equal  Treatment  of  Persons  with  Disabilities  Act27  does  not  contain  an  explicit 
prohibition  of  sex/gender  discrimination.  However,  under  Section 2,  the  particular 
concerns of women with disabilities must be taken into account and existing disadvantages 
must  be  eliminated  in  order  to  enforce  equal  rights  for  women  and  men  and  to  avoid 
discrimination  against  women  with  disabilities  on  several  grounds.  Moreover,  special 

20   Federal Constitutional Court, judgment of 11 April 2018, 1 BvR 3080/09 (Stadionverbot). The ruling in 
Stadionverbot is in compliance with the rulings upon the exercise of freedom of assembly by use of 
privatised public space, see Federal Constitutional Court, judgment of 22 February 2011, 1 BvR 699/06 
(Fraport), and judgment of 18 July 2015, 1 BvQ 25/15 (Bierdosenflashmob).  

21   General Equal Treatment Act of 14 August 2006 (Allgemeines Gleichbehandlungsgesetz), Official Journal 

2006, p. 1897, https://www.gesetze-im-internet.de/englisch_agg/index.html.  

22   Equal Treatment of Soldiers Act of 14 August 2006 (Soldatengleichbehandlungsgesetz), Official Journal 

2006, p. 1897, 1904, https://www.gesetze-im-internet.de/soldgg/.  

23   Pay Transparency Act of 30 June 2017 (Gesetz zur Förderung der Entgelttransparenz zwischen Frauen und 

Männern, Entgelttransparenzgesetz), Official Journal 2017, p. 2152, www.gesetze-im-
internet.de/entgtranspg/BJNR215210017.html. 

24   Federal Equality Act of 24 April 2015 (Bundesgleichstellungsgesetz), Official Journal 2015, p. 642, 

https://www.gesetze-im-internet.de/bgleig_2015/BJNR064300015.html.  
25   A compilation of the federal and state equality statutes is available under 

https://www.vernetzungsstelle.de/themen/gleichstellung-in-der-verwaltung/gleichstellungsgesetze.  

26   A compilation of federal and state regulations on higher education is available under 

https://www.kmk.org/dokumentation-statistik/rechtsvorschriften-lehrplaene/uebersicht-
hochschulgesetze.html.  

27   Equal Treatment of Persons with Disabilities Act of 27 April 2002 (Behindertengleichstellungsgesetz), 

Official Journal 2002, p. 1467, https://www.gesetze-im-internet.de/bgg/.  

11 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

measures are permitted to promote the effective implementation of equal rights for women 
with disabilities and to eliminate existing disadvantages.  

12 

 
Country report – Gender equality – Germany – 2023 

3 

Implementation of central concepts28 

  Sex/gender/transgender 

3.1.1  Definition of ‘gender’ and ‘sex’ 

There is no legal definition of sex or gender in German law.  Throughout, the legislation 
uses  the  term  ‘Geschlecht’  which  in  German  can  refer  to  the  biological  sex,  the  social 
gender or both. 

The term Geschlecht in the  General Equal Treatment Act has been the  subject  of some 
debate.  Its  scope  was  primarily  discussed  with  regard  to  its  distinction  from  ‘sexual 
identity’  (the  term  ‘sexual  orientation’  is  not  used  in  German  law).  The  legislative 
memorandum  suggests  that  ‘Geschlecht’  (translated  to  sex/gender)  refers  only  to  men 
and women, while sexual identity  covers homosexuality and heterosexuality, as well as 
bisexuals,  transsexuals  and  intersex  people.29  Similar  suggestions  were  made  within 
academia.30 Closer scrutiny, however, exposes the weaknesses of such an interpretation. 
Firstly, an EU-conforming interpretation requires that trans persons are provided with the 
same  scope  of  protection  as  other  people  suffering  sex  discrimination.  Transgender 
identity will thus have to remain within the scope of ‘Geschlecht’.31 Moreover, it is difficult 
to  understand  why  intersex  people  should  fall  under  ‘sexual  identity’  while  people  with 
defined  sexual  organs  should  fall  under  ‘sex’,  given  that  both  in  part  are  linked  to 
chromosomal  (genetic)  and  anatomic  (gonadal)  sex.  It  is  thus  clear  that  the  term 
Geschlecht in the General Equal Treatment Act includes sex as well as gender. 

For some time, the Federal Constitutional Court and German legal discourse considered 
the term Geschlecht to mean just men and women, a view that seemed to be supported 
by Article 3 of the German Basic Law stating the equality of men and women in Article 3(2) 
and the prohibition of sex discrimination in Article 3(3). However, a binary understanding 
of the term ‘Geschlecht’ was always at odds with the case law of the Constitutional Court 
on the right of trans persons under Article 2 on personal autonomy (discussed below). 

In 2017 the Federal Constitutional Court  thus revisited the personal scope of sex under 
Article 3(3) and held that it included the protection of persons who do not permanently 
identify  as  male  or  female.  As  such,  it  drew  a  sharp  distinction  between  Article 3(2) 
referring to the equality of men and women, and Article 3(3) using the broader term and 
banning ‘sex/gender’ discrimination.32 

This landmark decision concerned with the Civil Status Act significantly impacted the legal 
understanding of gender. Under the Act, the sex of every newborn child must be recorded 
in the birth register immediately after birth. It was widely assumed that this only included 
a male or female sex. This assumption was first challenged when Section 22(3) of the Civil 
Status Act (Personenstandsgesetz, PStG) was amended and allowed newly born children 
to be registered without reference to their legal sex if  ‘the child can neither be assigned 

28   See Burri, S. (2018), EU gender equality law – update 2018, European network of legal experts in gender 
equality and non-discrimination, available at: https://www.equalitylaw.eu/downloads/4767-eu-gender-
equality-law-update-2018-pdf-444-kb. 

29   Parliamentary Protocol (Plenarprotokoll), BT Drs 16/1780, 31 (08.06.2006) available at: 

http://dipbt.bundestag.de/doc/btd/16/017/1601780.pdf. 

30   Wank, R. (2004) ‘Diskriminierung in Europa’ 21(22) Neue Zeitschrift für Arbeitsrecht 16-20; Adomeit, K. 
and Mohr, J. (2011), Allgemeines Gleichbehandlungsgesetz (2nd edn, Stuttgart, Boorberg) S. 1, marginal 
numbers 76, 163; Meinel, G. and Heyn, J., Herms, S. (2010), Allgemeines Gleichbehandlungsgesetz 
(Munich, Beck) S. 1, marginal numbers 15, 27. 

31   Schiek, D. (2007) ‘Section 1 Paragraph 32’ in Schiek, D. (ed.) Allgemeines Gleichbehandlungsgesetz. 

Kommentar aus europäischer Perspektive, München 2007. 

32   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16, available at: 

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr201
916en.html;jsessionid=C9B3BA3FE2B03AC5C343E852EB72E19C.2_cid370 (in English).  

13 

 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

the male nor the female sex.’  33 The amendment was primarily  concerned with intersex 
children. Adult persons born before 2013 could request the correction. Unfortunately, the 
amendments  did  not  cover  the  legal  consequences  of  living  without  a  registered 
sex/gender (e.g. concerning marriage, parenthood  or anti-discrimination law); and only 
4 %  of  intersex  children  born  after  its  entry  into  force  were  registered  with  no  gender 
specification.34 

Following  the  2017  decision,  it  was  clear  that  the  law  needed  further  amendments  to 
provide a possibility for a positive entry of one’s sex/gender, other than male or female. 
The Court cited expertise from a wide scope of other disciplines and declared that in the 
natural  sciences  and  medicine  in  particular,  a  binary  sex/gender  order  had  not  been 
retained and that a broad variety of sex developments, including social and psychological 
factors, were recognised. While the case focused on intersex people only, its deliberation 
certainly suggested a broad inclusion of gender identities including transgender, intersex 
and non-binary persons under the scope of Article 3(3) of the German Constitution.35 

On 13 December 2018, the Bundestag passed the Law on amending the information to be 
recorded  in  the  birth  register  with  amendments  to  the  Civil  Status  Act.36  Section 22(3) 
now makes it possible to register the child as ‘diverse’ or without reference to their legal 
sex. Under Section 45b, persons with ‘variations of sex development’  can declare to the 
registry  office  that  the  gender  entry  in  the  birth  register  should  be  replaced  by  the 
recognised possibility of the entry of ‘divers’ or no entry at all. 

The legal amendment thus only focuses on intersex people (biological sex variations) and 
arguably fails to comply with the constitutional requirements outlined by the Constitutional 
Court. In 2020, the Federal Supreme Court recognised the limited scope of the amendment 
in  a  case  concerned  with  non-binary  gender  identity  (the  court  calls  this  ‘perceived 
intersexuality’).37 While the court held that Section 45b only applies to those with biological 
variations  of  sex  development,  it  considers  that  the  analogical  interpretation  of 
Section 8(1)  of  the  Transsexuals  Act  (concerned  with  gender  identity  beyond  biological 
sex) could achieve the same outcome for non-binary people. This potentially strengthened 
the protection of transgender people as the Court rejected the strict distinction between 
‘transsexuals’  and  intersex  persons  drawn  by  some  lower  courts.38  Indeed,  the 
constitutional  decision  on  the  ‘third  gender’  does  not  draw  a  clear  distinction  between 
biological intersexuality and non-binary gender identity. However, different legal regimes 
remain applicable if a person seeks to change their legal gender to ‘diverse.’ 

33   Law on amendments to the Civil Status Act (Gesetz zur Änderung personenstandsrechtlicher Vorschriften) 

of 7 May 2013, more information at: http://dipbt.bundestag.de/extrakt/ba/WP17/451/45180.html.  
34   See Althoff, N., Schabram, G. and Follmar-Otto, P. (2016), Gutachten Geschlechtervielfalt im Recht 

(Expertise on sex/gender diversity in law), DIMR: Berlin.  

35   P. Dunne & J. Mulder, ‘Beyond the Binary: Towards a Third Sex Category in Germany?’ (2018) 19(3) 

German Law Journal 627-648. 

36   Law on amending the information to be recorded in the birth register (Amendments to the Civil Status Act) 

of 18 December 2018, Official Journal 2018, p. 2635, 
https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*%5B@attr_id=%27bgb
l118s2639.pdf%27%5D#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl118s2635.pdf%27%5D__15694
58457814.  

37   Federal Supreme Court (BGH), judgment of 22 April 2020, XII ZB 383/19; Federal Supreme Court (BGH), 

judgment of 10 September 2020, XII ZB 451/19.  

38   Different lower courts reached different conclusions. The Higher Regional Court of Nürnberg, judgment of 
3 September 2019, 11 W 1880/19, stated explicitly that there is one statute for ‘transsexuals’ and one 
statute for intersex persons covering different requirements for the legal recognition of gender identity and 
that these differences would not constitute discrimination on the grounds of sex/gender. Unfortunately, the 
court displayed disturbing ignorance concerning the central concepts of sex, gender, gender identity, inter* 
and trans*. The Higher Regional Court Düsseldorf 11 June 2019, I-25 Wx 76/17 considered the inclusion of 
non-binary people with no biological variations of sex development under the scope of the modified Civil 
Status Act necessary to ensure its constitutionality. 

14 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

The current Government has proposed a Self-Determination Act that allows for a legal sex 
change without psychological assessment. Various medical interventions prior to  a legal 
transition have been declared unconstitutional by the Federal Constitutional Court and are 
thus invalid/non-applicable.39 As such, the distinction between biological sex and gender 
identity may become less prevalent within national legislation. 

3.1.2  Protection of transgender, intersex and non-binary persons 

Article 3(3)  of  the  German  Constitution  prohibits  any  disadvantageous  treatment  or 
treatment that privileges a person on the grounds of sex, descent, race, language, origin, 
religion and religious or political opinion as well as any disadvantages due to disability. As 
a  result  of  the  2017  landmark  Federal  Constitutional  Court  decision,  the  prohibition  of 
discrimination on the grounds of sex also covers the prohibition of discrimination on the 
grounds of gender identity.40 

The  court  explained that  Article 3(3)  first  sentence of the  German Constitution protects 
persons who do not permanently identify with the two categories male and female against 
discrimination  based  on  their  gender,  which  is  neither  exclusively  male  nor  exclusively 
female. Thus, intersex and non-binary persons are protected against discrimination under 
the  prohibition  of  discrimination  on  the  grounds  of  sex.  Legal  commentaries  on 
constitutional law agree on this finding and point out that transgender is included in this 
protection against gender discrimination. 

The  previous  case  law  on  the  validity  of  several  sections  of  the  Transsexuals  Act  were 
based  on  the  right  to  personal  autonomy  (Article 2  of  the  Constitution)  as  opposed  to 
equality. Within that context, the Federal Constitution has always recognised the gender 
identity  of  the  transgender  person.41  Indeed  it  stated  that  ‘Geschlecht’  was  not  only  a 
biological  question  but  included  psychological  gender  identity  and  individual  decisions 
about  gender  recognition.42  The  identification  of  ‘gender  identity’  as  a  legal  issue  was 
followed  by  the  decoupling  of  gender  identity  and  sexual  orientation  through  the 
recognition  of  same-sex  partnerships  of  transgender  persons  (thus  establishing  factual 
same-sex marriage long before it was recognised by the law),43 and of gender identity and 
anatomical/biological  sex  through  the  abolition  of  the  obligation  to  undergo  compulsory 
sex  confirmation  surgery  to  achieve  legal  recognition  of  one’s  gender  identity.44  This 
double  decoupling  of  different  dimensions  of  ‘Geschlecht’  has  fundamentally  shaken  up 
hegemonic orders of sex/gender. 

All of this was achieved without engaging with the meaning and scope of Geschlecht within 
Article 3(3) of the Constitution. As such, the court did not recognise gender identity as a 
question of gender equality. This view was contested by legal authors whose interpretation 
of  the  concept  of  gender  equality  covered  non-discrimination  because  of  sex/gender  as 
well  as  gender  identity  (transgender  and  intersex  persons)  and  sexual  orientation,  as 

39   Federal Constitutional Court, judgment of 6 December 2005, 1 BvL 3/03; judgement of 27 May 2008 1 BvL 

10/05; judgment of 11 January 2011 1 BvR 3295/07. A thorough analysis of the problems and a draft law 
with explanatory remarks was presented by Adamietz, L. and Bager, K. (2016), Regelungs- und 
Reformbedarf für transgeschlechtliche Menschen (Regulatory requirements and the necessity of reform for 
transgender persons), BMFSFJ: Berlin.  

40   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16, 

https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr201
916en.html;jsessionid=C9B3BA3FE2B03AC5C343E852EB72E19C.2_cid370 (in English). 

41   Federal Constitutional Court, judgment of 16 March 1982, 1 BvR 938/81, judgment of 26 January 1983, 
1 BvL 38, 40, 43/92, judgment of 15 August 1996, 2 BvR 1833/95, judgment of 6 December 2005, 
1 BvL 3/03, judgment of 18 July 2006, 1 BvL 1, 12/04, judgment of 27 May 2008, 1 BvL 10/05, judgment 
of 11 January 2011, 1 BvR 3295/07, and judgment of 27 October 2011, 1 BvR 2027/11, mostly available 
at: http://www.servat.unibe.ch/dfr/ or www.bundesverfassungsgericht.de.  
42   Federal Constitutional Court, judgment of 15 August 1996, 2 BvR 1833/95, 

https://www.dgti.org/tsgrecht.html?id=94.  

43   Federal Constitutional Court, judgment of 6 December 2005, 1 BvL 3/03.  
44   Federal Constitutional Court, judgment of 11 January 2011, 1 BvR 3295/07, 

http://www.bverfg.de/e/rs20110111_1bvr329507.html.  

15 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

discrimination  based  on  these  characteristics  all  relate  to  gender  expectations.45  The 
Federal Constitutional Court’s view was also criticised on the basis that granting protection 
under the right of personal autonomy rather than the prohibition of discrimination would 
make  discrimination  as  a  structural  societal  problem  invisible,  would  individualise  the 
experience of gender discrimination and would not fully separate questions of transgender 
identity from discussions about personal health problems. The 2017 landmark decision of 
the  Federal  Constitutional  Court  stating  that  the  prohibition  of  discrimination  on  the 
grounds of sex covers the prohibition of discrimination on the grounds of gender identity 
as well can be read as a paradigm shift, not only for intersex and non-binary persons but 
for  transgender  persons  as  well.  As  such  it  was  a  necessary  step  for  the  consistent 
understanding of gender inequality and gender discrimination. 

However,  just  like  the  CJEU,  the  Constitutional  Court  continues  to  distinguish  between 
sex/gender on the one hand, and sexual orientation the other hand and as such, arguably, 
does not recognise all aspects that the term gender encompasses. In technical terms, this 
means that discrimination based on sexual orientation cannot be challenged by reference 
to the explicit prohibition of discrimination in Article 3 para. 3 of the Constitution. Indeed, 
the Court’s case law on discrimination  against  same-sex civil  partners in comparison to 
married opposite-sex partners, prior to the introduction of same-sex marriage, is based 
on  Article 3(1)  of  the  Constitution.  As  such,  the  Court  distinguished  between  sexual 
orientation, which refers to the relationship to others, and sex, which only refers to one’s 
own characteristics, i.e. to the sex of one individual person. The Court emphasised that 
Article 3(3) provides an exhaustive list of protected characteristics and that the Parliament 
explicitly  refused46  to  modify  the  third  paragraph  by  adding  ‘sexual  identity’  to  the 
exhaustive  list.47  Only  the  general  open-ended  equal  treatment  principle  in  Article 3(1) 
can thus have relevance for the protection of homosexuals. However, it then held that the 
scrutiny is particularly strict if the disadvantaged group is linked to a minority like those 
protected under Article 3(3), even if the discrimination is only indirect.48 It should be noted 
in this context that the term ‘sexual identity’ is preferred to the term ‘sexual orientation’ 
within  national  legal  discourse  and  ordinary  law.  As  discussed  in  3.1.1.,  the  legislator 
assumed it to cover a broader scope and include transgender identity and intersexuality. 
However,  such  understanding  clashes  with  the  relevant  EU  directives.  Within  the 
constitutional  context,  the  decision  on  the  third  gender  has  clearly  subsumed  gender 
identity  and  intersexuality  under  the  scope  of  sex/gender.  As  such,  the  term  ‘sexual 
identity’ should be mostly considered as interchangeable with the term ‘sexual orientation’. 

The  need  to  add  ‘sexual  orientation/identity’  as  a  protected  characteristic  under 
Article 3(3) remains controversial. The Committee for Justice and Consumer Protection of 
the  Federal  Parliament  held  a  public  hearing  on  this  topic  on  12 February  2020.49  The 
majority  of  the  committee  agreed  upon  the  necessity  of  legal  protection  against 
discrimination  on  the  grounds  of  sexual  orientation  and  gender  identity  but,  so  far,  no 
further action has been taken. The most important point is for there to be effective legal 
protection; the wording is less important although certainly not insignificant. 

45   Adamietz, L. (2011), Geschlecht als Erwartung. Das Geschlechtsdiskriminierungsverbot als Recht gegen 
Diskriminierung wegen der sexuellen Orientierung und der Geschlechtsidentität (Gender as Expectation. 
The prohibition of gender discrimination as a legal means against discrimination on the grounds of sexual 
orientation and gender identity), Baden-Baden: Nomos. Also already concerning the EU legal context, 
Wintemute, R., ‘Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation 
and Dress Codes’ (1997) 60(3) The Modern Law Review 334-359. 

46   Report of the Joined Constitutional Commission, BT Drs 12/6000 (05.11.1993) 

http://dipbt.bundestag.de/dip21/btd/12/060/1206000.pdf accessed 20 October 2015, 54. 

47   Federal Constitutional Court, judgment of 20 September 2007, 2 BvR 855/06; judgment of 07 May 2013, 2 

BvR 909/06. 

48   Federal Constitutional Court, judgment of 19 June 2012, 2 BvR 1397/09. 
49   All documents are available at: Deutscher Bundestag - Experten für die Aufnahme der sexuellen Identität in 

das Grundgesetz.  

16 

 
 
 
 
 
Country report – Gender equality – Germany – 2023 

The 2006 General Equal Treatment Act prohibits any disadvantageous treatment on the 
grounds  of,  among  others,  sex/gender  and  ‘sexual  identity’.  Within  the  German  legal 
system, the term ‘sexual identity’ is only used in some of the German state constitutions 
that  entered  into  force  after  1990  and  are  very  seldom  applied.  ‘Sexual  identity’  is  a 
confusing mixture of ‘sexual orientation’ and ‘gender identity’. Accordingly, there was (and 
still  is)  some  confusion  about  the  question  whether  ‘sexual  identity’  covers  sexual 
orientation  or  gender  identity  or  both  (see  discussion  above  under  3.1.1).  The  main 
arguments against a broad meaning of the term ‘sexual identity’ are that although sexual 
orientation might be seen as a question of identity, gender identity as such is not linked 
to any specific sexual orientation – transgender or intersex persons may be homosexual 
or  heterosexual  or  bisexual  or  asexual.  The  EU  requirement  to  subsume  transgender 
identity under the scope of sex discrimination also seems relevant. 

The  judiciary  seems  to  avoid  the  issue  if  possible.  In  2015,  the  Federal  Labour  Court 
decided  that  the  discrimination  of  a  transgender  person  constitutes  prohibited 
discrimination either on the grounds of sexual identity or – in accordance with European 
directives – on the grounds of sex/gender.50 The court pointed out that, at the time of the 
introduction of the law, the legislature may have seen transgender and intersex as covered 
by the category of ‘sexual identity’, but that this term was and is unknown in European 
(anti-discrimination)  law  and  therefore,  both  categories  could  apply  without  weakening 
the protection in any way. The Federal Labour Court further explained that a person who 
considers themself to be discriminated against because of transsexuality already satisfies 
their burden of proof if they submit indications which suggest with a high probability that 
they were perceived as a transsexual person and therefore disadvantaged. In such a case, 
the presumption is justified that the discriminating/disadvantaging person has assumed 
transsexuality and that this assumption was partly responsible for their decision. 

Table 1: Protection of transgender, intersex and non-binary persons 

Are gender identity/transgender 
status/intersex status/sex 
characteristic etc. specific grounds 
of prohibited discrimination? 

Is discrimination against transgender, 
intersex and non-binary persons 
forbidden on the basis of the existing 
prohibition on sex discrimination? 

No. 

Yes. 
Transgender/intersex/non-binary are 
protected under the constitutional protection 
referring to sex/gender (Article 3(3) of the 
Constitution). 
They are also protected under the General 
Equal Treatment Act, referring to sex and 
sexual identity. 

3.1.3  Specific requirements 

Generally, there are no specific requirements to enjoy protection against discrimination, 
although the limits of binary thought are a factor. 

As such,  courts have struggled to provide proper protection to  trans persons  under the 
scope of non-discrimination law even if their transgender or non-binary identity was not 
questioned. In 2007, the Administrative Court of Frankfurt decided that the non-hiring of 
a  transgender  applicant  for  the  law  enforcement  services  did  not  constitute  indirect 
discrimination on the grounds of sex/gender and/or direct discrimination on the grounds 
of  disability  because  the  requirement  of  endogenous  hormone  supply  was  a  mandatory 

50   Federal Labour Court, judgment of 17 December 2015, 8 AZR 421/14; Higher Labour Court 

Berlin/Brandenburg judgment of 9 December 2021, 26 Sa 339/21. 

17 

 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

occupational requirement for working in law enforcement.51 It is the author’s opinion that 
the  courts’  past  failure  to  engage  with  transgender  discrimination  is  partly  due  to  the 
Constitutional  Court’s  failure  to  fully  explore  the  gender  equality  dimensions  within  its 
context, by focusing mostly on the trans person’s right to personal autonomy.52 

The case law has developed in some respects. In 2014, the Administrative Court of Berlin 
decided  that  a  transgender  civil  servant  working  for  the  German  Federal  Bureau  of 
Investigation  could  not  be  denied  the  appointment  as  civil  servant  for  life  on  the  sole 
ground that he was a post-operative transgender person.53 The court explained that the 
operative and hormonal change of sex/gender was not an illness but a process accepted 
by federal and constitutional law and that this process as such did not indicate a premature 
inability to work in the future. 

Moreover, several lower courts have recognised that online portals that require a choice 
between male and female can discriminate against non-binary people. Interestingly, the 
courts did not always require a formal legal recognition as ‘diverse’ or a blank reference 
to the legal sex as is possible under the Civil Status Act (as outlined above 3.1.1). While 
the non-binary identity is not questioned in most cases, due to a formal legal recognition,54 
the Higher Regional Court in Frankfurt explicitly considered that application of the law in 
practice is often understood narrowly/literally, meaning that it is only applied to intersex 
individuals, not non-binary people. Given that such a practice does not conform with the 
constitutional requirements as outlined by the Federal Constitutional Court,55 it considered 
that the protective personal scope should not always be limited to those who have a formal 
recognition of their non-binary gender identity.56 The Labour Court in Koblenz also held 
that the protection under the national  or EU law ‘does not  require an  adaptation of the 
first name, a change of status of the sex, or a sex change; it is sufficient for biological and 
psychological sex to not coincide permanently.’57 

The Civil Status Act (PStG) allows the change of the legal sex and first name at the register 
office  in  the  case  of  ‘variants  of  sex  development’  (namely  intersex  people).  Under 
Section 45b(3) of the  PStG a variant of sex development must be demonstrated by the 
production  of  a  medical  certificate.  In  the  absence  of  such  a  certificate  and  the 
unreasonableness  of  an  examination,  the  affirmation  on  oath  is  sufficient.  Under  the 
Transexual Act, transgender individuals who want to change their legal gender must file 
an  application  before  the  competent  local  court.  Transgender  applicants  have  to  have 
considered themselves not to belong to the sex/gender indicated in their birth registration 
any longer but to the opposite sex/gender for at least three years. Two different medical 
or psychological experts appointed by the court have to testify on this individual sense of 
belonging as well as to conclude that it is highly probable that this sense of belonging to 
the  opposite  sex/gender  will  not  change.58  The  applicable  law,  the  Transsexuals  Act,59 

51   Administrative Court of Frankfurt, judgment of 3 December 2007, 9 E 5697/06.  
52   Mulder, J. (2017), EU Non-Discrimination Law in the Courts (Hart Publishing, Oxford).  
53   Administrative Court of Berlin, judgment of 30 April 2014, 36 K 394.12. 
54   Higher Regional Court (OLG) Karlsruhe judgment of 14 December 2021, 24 U 19/21; Regional Court (LG) 

Frankfurt am Main, judgment of 26 August 2021, 2-30 O 154/21. 

55   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16. See also Federal Supreme 

Court (BGH), judgment of 10 September 2020, XII ZB 451/19.  

56   Higher Regional Court (OLG) Frankfurt am Main, judgment of 21 June 2022, 9 U 92/20.  
57   Labour Court Koblenz, judgment of 9 February 2022, 7 Ca 2291/21; appealed to Higher Labour Court 

Rhineland-Palatinate, 7 Sa 73/22.  

58   The Federal Constitutional Court, judgment of 17 October 2017, 1 BvR 747/17, confirmed the requirement 
of these two expert opinions by explaining that changing one’s gender is a severe and troublesome process 
which might require therapeutic support. But the Court pointed out that the decision whether to seek 
therapeutic assistance or not is completely at the discretion of the transgender person. Therefore, medical 
and psychological experts must not use the necessary assessment to persuade or even force other persons 
to seek therapeutic guidance and must not ask questions beyond those necessary to give their expert 
opinion on the topics asked for by the law.  

59   Act on the alteration of first names and the determination of gender affiliation in special cases –

Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der 

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Country report – Gender equality – Germany – 2023 

required,  among  other  things,  mandatory  surgery,  sterilisation,  divorce,  German 
citizenship and a minimum age. However, in several decisions, the Federal Constitutional 
Court  decided  that  all  these  additional  requirements  were  incompatible  with  the 
Constitution. 

The planned Self-Determination Act will abolish the need for a psychological assessment 
for trans persons  and aims at  consistent  regulation in the Civil Status Act. Accordingly, 
non-binary and intersex people can change their legal sex and first name in accordance 
with the Civil Status Act.60 While it is not published yet, there are some indications that 
the coalition Government’s proposed Act will include a ‘cooling-off or waiting period’ for 
the legal change, special rules for protected women’s spaces, and specific rules for minors 
who  are  younger  than  14  years  old.61  The  question  when  transgender  people  can  be 
excluded  from  protected  women’s  spaces  is  controversial.  While  some  politicians  have 
suggested a broad application, the General Equal Treatment Act imposes obvious limits.62 
As such, we have to wait for the precise wording of the proposed Act. 

  Direct sex discrimination 

3.2.1  Explicit prohibition 

Direct (sex) discrimination is explicitly prohibited in German legislation. Section 3(1)(1) of 
the  General  Equal  Treatment  Act  defines  direct  discrimination  for  all  the  protected 
characteristics.  Accordingly,  it  states  that  direct  discrimination  shall  be  taken  to  occur 
where one person is treated less favourably than another is, has been or would be treated 
in  a  comparable  situation  on  the  grounds  of  (inter  alia)  sex/gender.  The  definition  is  a 
direct implementation of the European directives, although it has to be noted that the Act 
does not continuously employ the term ‘discrimination’ but Benachteiligung (putting at a 
disadvantage) without intending to weaken the protection as compared to the directives.63 
The legislation aimed to clarify with the terminology that not every differential treatment 
amounts  to  discrimination.64  Indeed,  it  has  been  suggested  in  the  literature  that  very 
minor different treatment for the benefit of one protected group (e.g. women are allowed 
to leave work two minutes earlier) does not amount to a disadvantage as long as this is 
interpreted narrowly.65 

3.2.2  General discrimination 

Whether general or objective discrimination is explicitly prohibited is somewhat uncertain. 
Section 11  of  the  General  Equal  Treatment  Act  makes  explicit  that  discriminatory  job 
advertisements  are  prohibited.  This  could  include  statements  such  as  ‘we  do  not  hire 
women’ but also cover more common situations in which a position or job description is 
not  expressed  in  gender-neutral  terms  and  thus  does  not  equally  address  all  potential 

Geschlechtszugehörigkeit in besonderen Fällen – Transsexuellengesetz) of 10 September 1980, as 
amended, available at: https://www.gesetze-im-internet.de/tsg/BJNR016540980.html. 
60   BMFSFJ, Questions and Answers to the Self-Determination Act (Fragen und Antworten zum 

Selbstbestimmungsgesetz) 29.12.2022 available online 
www.bmfsfj.de/bmfsfj/themen/gleichstellung/gleichgeschlechtliche-lebensweisen-
geschlechtsidentitaet/fragen-und-antworten-zum-selbstbestimmungsgesetz-199332.  

61   Tagesschau (26.03.2023) www.tagesschau.de/inland/innenpolitik/selbstbestimmungsgesetz-

gesetzesentwurf-101.html.  

62   See for discussion, Siegessäule (27.03.2023) www.siegessaeule.de/magazin/diskriminierende-regelungen-

beim-selbtsbestimmungsgesetz/?fbclid=IwAR22CNznvJXbJSdSPH2P-4CmQXUoDI3SEoRYPXR5rCg-
6LefJBC4ezTNnmo.  

63   Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 
(Evaluation of the General Equal Treatment Act), ADS: Berlin, pp. 25f, suggest using the correct term‚ 
‘discrimination’.  

64   Parliamentary Protocol (Plenarprotokoll), BT Drs 16/1780, 30, 8 June 2006. 
65   With reference to English case law, Schiek, D. (2007) ‘Section 3 Paragraph 9’ in Schiek, D. (ed.) 

Allgemeines Gleichbehandlungsgesetz. Kommentar aus europäischer Perspektive, München 2007; Schrader, 
P. and Schubert, J. (2022), Section 3 paragraph 10, in Däubler, W. (ed.) Kommentar Allgemeines 
Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden. 

19 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

applicants. Given that Geschlecht has a broad scope and does not refer only to men and 
women,66  any  references  to  men  and  women  should  be  avoided.  The  Federal  Labour 
Court’s approach accepting references to (m/f) in the headline as sufficient,67 thus needs 
to be reconsidered.68 The State Labour Court of Schleswig-Holstein considered an inclusion 
of a ‘gender-star’ (i.e. Diplom-Sozialpädagog*innen) to be sufficient to express inclusion 
of all genders, not just men and women.69 Accordingly, the purpose of the star is to express 
gender diversity and inclusion. The provision provides an objective prohibition; it does not 
require anybody to be disadvantaged. 

However,  beyond  that,  it  is  unclear  to  what  degree  the  General  Equal  Treatment  Act 
prohibits discrimination in cases without an identifiable victim (Feryn).70 Such enforcement 
is difficult given that the system of legal protection and enforcement is strictly based on 
individual rights. Indeed, courts often emphasise that a sufficiently serious disadvantage 
has to be demonstrated; a limited personal impact combined with a general objective to 
achieve equality between men and women is not a sufficient interest.71 

In practice, Section 11 is primarily relevant as an indicator of discrimination in disputes 
concerned  with  discriminatory  recruitment  practices  that  potentially  disadvantaged  the 
claimant. After all, it indicates that gender did influence the recruitment decision, even if 
it was not the only reason. However, the possible claimants are further limited to include 
only serious applicants. This is supposed to counteract apparent as well as alleged abuses 
of the General Equal Treatment Act by so-called AGG-Hoppers. Ever since the inception of 
the AGG, parts of German academia, the German judiciary, as well as some parts of the 
public  have  been  concerned  with  the  potential  flood  of  lawsuits  and  how  it  could  be 
curtailed.  The  prototype  abusing  the  new  law  was  a  somewhat  illusive  character  who 
combs through the job market to uncover discriminatory job advertisements only in order 
to claim damages for discrimination. The AGG was considered to potentially enable a large 
number of frivolous lawsuits lodged by people who never had the intention or desire to be 
employed  and  thus  did  not  suffer  a  disadvantage  but  sought  to  exploit  the  naïveté  or 
ignorance  of  some  (small)  employers  who  continue  to  advertise  jobs  for  a  ‘female 
secretary’ or a ‘young trainee’. While there has never been much evidence supporting such 
a flood of claims, national courts have developed a long line of case law to counteract this 
alleged danger of abuse. Accordingly, unserious applicants (the so-called AGG-Hoppers), 
who  only  seek the status of applicant to claim damages, are not  considered  employees 
within the meaning of  Section 7 AGG. To identify the lack of sincerity of applicants, the 
courts  have  considered  the  number  of  claims  lodged,  or  the  fact  that  the  applicant  is 
overqualified.72 The CJEU in Kratzer73 did not reject such an approach in principle. 

Beyond  that,  the  scope  to  challenge  objective  discrimination  in  job  advertisements  is 
rather limited. Indeed, this has been identified as a main obstacle to effectively address 
algorithmic discrimination (see 9.1.1). The General Equal Treatment Act does not provide 
for representative action or class actions. Equality agencies or trade unions cannot sue in 

66   Federal Constitutional Court, judgment of 10 October 2017, 1 BvR 2019/16, 

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2017/10/rs20171010_1bvr2019
16en.html. 

67   Federal Labour Court, judgment of 23 November 2017, 8 AZR 604/16, 

DE:BAG:2017:231117.U.8AZR604.16.0, 8-AZR-604-16.pdf (bundesarbeitsgericht.de).  

68   Buschmann, R. (2022), Section 11 paragraph 23, in Däubler, W. (ed.) Kommentar Allgemeines 

Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden. 

69   State Labour Court (LAG) of Schleswig-Holstein, judgment of 22 June 2021, 3 Sa 37 öD/21.  
70   Judgment of the Court (Second Chamber) of 10 July 2008, Centrum voor gelijkheid van kansen en voor 

racismebestrijding v Firma Feryn NV. 2008, Case C-54/07, ECLI:EU:C:2008:397.  

71   District Court (AG) Gießen, judgment of 26 May 2011, 47 C 12/11. 
72   Federal Labour Court, judgment of 18 June 2015, 8 AZR 848/13-A. Adopted from Mulder, J. (2016), ‘When 
is an applicant an applicant?’ available at: https://legalresearch.blogs.bris.ac.uk/2016/08/when-is-an-
applicant-an-applicant-about-the-potential-abuse-of-non-discrimination-law-equality-law-hoppers-and-the-
eu-equality-law-directives/. Further references, Mulder, J. (2017), EU Non-Discrimination Law in the Courts 
(Hart Publishing, Oxford) pp. 165-167. 

73   CJEU, decision of 28 July 2016, Kratzer, C-423/15, ECLI:EU:C:2016:604. 

20 

 
 
 
 
Country report – Gender equality – Germany – 2023 

their own name. However, Section 17(2) of the General Equal Treatment Act allows  the 
works councils, or a trade union represented in the enterprise to challenge the employer’s 
‘gross violation’ of the Act under certain conditions. In an interpretation that conforms with 
EU law, that should include the challenge of objective or general discrimination, including 
but not exclusively covering Section 11 violations. The provision explicitly excludes ‘claims 
of  the  person  suffering  discrimination.’  It  should  also  be  noted  that  the  State  Anti-
Discrimination Act (Berlin) of 20 June 202074 concerned with discriminatory actions under 
public law that fall outside the scope of the General Equal Treatment Act, does include a 
representative action (Verbandsklage) in Section 9. 

3.2.3  Prohibition of pregnancy and maternity discrimination 

Pregnancy and maternity discrimination are explicitly prohibited in legislation as forms of 
direct sex discrimination. Section 3(1)(2) of the General Equal Treatment Act states that 
direct  discrimination  on  the  grounds  of  sex  will  also  be  taken  to  occur  in  relation  to 
employment (access to employment, employment and working conditions, pay, vocational 
training, employment organisations, etc.) in the event of the less favourable treatment of 
a woman on account of pregnancy or maternity/motherhood.75 The provision is a direct 
implementation  of  Article 2(2)(c)  of  Directive 2006/54.  Following  the  CJEU  case  law  on 
sex discrimination the Federal Labour Court considers this to relate to disadvantages that 
are  connected  to  the  temporal  and  factual  context  of  pregnancy,  breastfeeding  or  birth 
and  thus  can  only  ever  impact  biological  women  and  distinguishes  this  from  the 
disadvantage of women who are mothers.76 

Unfortunately,  the  prohibition  of  pregnancy  and  maternity  discrimination  is  explicitly 
restricted to the area of employment and does not cover access to good and services. 

3.2.4  Specific difficulties 

Following the implementation of the Test-Achats ruling, there are no specific difficulties in 
applying  the  concept  of  direct  sex  discrimination  in  Germany  outside  the  scope  of  pay 
discrimination  (despite  the  usual  problems  of  enforcement  of  anti-discrimination  law). 
Intersectional  discrimination  and  some  kinds  of  indirect  discrimination  and  sexual 
harassment  remain  the  major  problems.  The  main  question  remains  what  evidence  is 
necessary to demonstrate direct sex discrimination and how to distinguish between direct 
and indirect discrimination. For example, the Federal Labour Court considers that a note 
stating ‘one 7-year-old child’ written on a female application’s paperwork could indicate 
direct sex discrimination, while the lower court perceived it as indirect sex discrimination, 
since all applicants can have children but women are more likely to be single parents.77 

  Indirect sex discrimination78 

3.3.1  Explicit prohibition 

Indirect (sex) discrimination is explicitly prohibited in German legislation. Section 3(2) of 
the  General  Equal  Treatment  Act  provides  a  general  definition  and  states  that  indirect 
discrimination will be taken to  occur where an  apparently neutral provision,  criterion or 
practice would put persons at a particular disadvantage compared with other persons on 
the  grounds  of  (inter  alia)  sex/gender,  unless  that  provision,  criterion  or  practice  is 

74   State Anti-Discrimination Act (Berlin) of 20 June 2020, 76(29) Official Journal for Berlin 2020, p. 532. 
75   Confirmed by Federal Labour Court, judgment of 24 February 2016, 7 AZR 253/14.  
76   Federal Labour Court (BAG) judgment of 18. September 2014, 8 AZR 753/13; Monika Schlachter-Voll, 40 
AGG section 3’ in Rudi Müller-Glöge, Rudi Müller-Glöge, Ingrid Schmidt (eds) Erfurter Kommentar zum 
Arbeitsrecht (23rd Edition, CH Beck 2023), 268. 

77   Federal Labour Court, judgment of 18 September 2014, 8 AZR 753/13.  
78   See for more information Mulder, J. (2021) Indirect sex discrimination in employment European network of 

legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/5362-indirect-discrimination-in-employment-pdf-1-434-kb. 

21 

 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

objectively  justified  by  a  legitimate  aim,  and  the  means  of  achieving  that  aim  are 
appropriate and necessary. The provision is a direct implementation of  Article 2(1)(c) of 
Directive 2006/54  with  one  exception:  the  Act  does  not  continuously  employ  the  term 
discrimination  but  Benachteiligung  (putting  at  a  disadvantage)  without  intending  to 
weaken the protection as compared to the directives. However, the protection is actually 
weakened  by  Section 20(1)  of  the  General  Equal  Treatment  Act,  which  stipulates  that 
differential treatment based on sex is permitted in the provision of goods and services if 
there is an objective reason for this, while the requirement of proportionality is missing. 

3.3.2  Statistical evidence 

Generally, statistical evidence can be used in order to establish a presumption of indirect 
sex  discrimination.  The  scope  of  the  use  of  statistical  data  as  prima  facie  evidence  has 
been  restricted  by  the  Federal  Labour  Court.79  In  contrast  to  the  State  Labour  Court  of 
Berlin and Brandenburg in the same anti-discrimination lawsuit, the Federal Labour Court 
remained  unimpressed  by  the  fact  that  69 %  of  the  employees  of  the  defendant  were 
female, while all executive board members, highest managers and district managers were 
male. It stated that a discriminatory ‘glass ceiling’ could be assumed only when there is 
proof of the existence of a sufficient pool of female employees eligible for the promotion 
in question and, moreover, when the exclusive maleness of leading positions is not the 
sole  result  of  societal  reconciliation  problems  for  which  the  employer  cannot  be  held 
accountable.80  The  case  poses  several  problems.  Primarily,  the  Court  did  not  clearly 
distinguish  between  direct  and  indirect  discrimination  and  thus  failed  to  appreciate  the 
different  role  of  statistics  in  both  circumstances.  Indeed,  its  discussion  of  the  potential 
covert (direct or indirect) discrimination identified by statistical means primarily focuses 
on  the  shift  of  the  burden  of  proof  within  the  context  of  direct  discrimination.  The 
‘particular  disadvantage’  of  a  yet-to-be-identified  provision,  criterion  or  practice  is  not 
explored in detail. However, the case seems to suggest that overall unequal outcomes are 
not sufficient to identify a ‘particular disadvantage.’ Statistical evidence to demonstrate a 
‘particular disadvantage’ thus needs to focus on the correct pool  of  comparators that is 
indeed affected by the particular policy or practice. 

The Labour Court  of Stuttgart decided without further consideration that there is  prima 
facie  evidence  indicating  gender  discrimination  when  the  percentage  of  men  among  all 
applicants  is  significantly  higher  than  the  percentage  of  men  among  the  applicants 
subsequently hired.81 This approach has also been supported in the literature in the case 
of mass hiring.82 In 2014, the Federal Labour Court rejected the use of official statistics 
on significant differences in the employment of mothers (25 % full time) and fathers (95 % 
full time) for proving sex discrimination against a female job applicant caring for a seven-
year-old child.83 While the Court accepted that general statistical data could demonstrate 
that women with children suffer disadvantages for the purpose of indirect discrimination, 
even if there is not statistical data about the particular undertaking, it then held that the 
statistical  evidence  in  question  was  insignificant.  Specifically,  these  statistics  cover 
discrimination in existing employment but not the question of discrimination when applying 
for full-time employment. Considering this, it remains questionable what general statistical 
evidence could help an applicant who was not hired. 

79   Federal Labour Court, judgment of 22 July 2010, 8 AZR 1012/08, overruling the State Labour Court of 

Berlin and Brandenburg, judgment of 26 November 2008, 15 Sa 517/08.  

80   Combined with the lack of a right of access to the employer’s files or an employer’s obligation to publish 
employees’ salaries and fringe benefits, claimants could very rarely enjoy the advantages of a statutory 
shift of the burden of proof. The adoption of the Pay Transparency Act did not considerably change this 
situation, see section 11.5 below.  

81   Labour Court of Stuttgart, judgment of 26 April 2007, 15 Ca 11133/06.  
82   Däubler, W. (2022), ‘section 7 paragraph 89’ in Däubler, W. (ed.) Kommentar Allgemeines 

Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden. 

83   Federal Labour Court, judgment of 18 September 2014, 8 AZR 753/13. In the same decision, the Court 
made important remarks about direct and indirect sex discrimination and suggested the possibility of 
identifying indirect discrimination without any statistics. Most of the media reported that the Court had 
rejected the use of statistics on the employment rates of mothers and fathers.  

22 

 
 
 
 
Country report – Gender equality – Germany – 2023 

Overall, this suggests that statistical evidence is used strictly and only if it relates to the 
narrowly  defined  pool  of  comparators.  There  seems  to  be  little  scope  to  recognise  the 
general  impact  of  measures  and  practices  by  looking  at  the  workers  pool  as  a  whole. 
Moreover, absolute numbers do not matter,  as  opposed to  relative differences between 
the  group  of  beneficiaries  and  those  being  disadvantaged.84  The  Federal  Labour  Court 
(BAG) has also made clear that it is not only the percentage that matters, but the certainty 
of the deviation measured against the expected normal distribution. As such the deviations 
within  the  disadvantaged  as  well  as  advantaged  group  matter.85  The  statistics  need  to 
show that women are significantly more affected than men (or vice versa).86 

3.3.3  Application of the objective justification test 

The  objective  justification  test  is  generally  applied  based  on  the  given  definition. 
Accordingly, claims, fears and conjectures cannot justify a particular disadvantage.87 With 
reference  to  Jenkins,88  the  Federal  Labour  Court  states  that  ‘if  an  economic  reason  is 
invoked  as  an  legitimate  aim,  only  an  objectively  justified  economic  reason  can  be 
considered’.89  

The  test  has  not  always  been  applied  strictly  in  older  decisions.  In  2005,  the  BAG  did 
consider cost reduction as it helped to retain jobs and prevent outsourcing without further 
elaborating why this requires the unequal pay of different groups of employees. However, 
it should be noted that it also denied the equal value of the work and did not consider it 
relevant that the regrouping almost exclusively affected women.90 In a similar case, the 
BAG  considered  it  to  be  legitimate  aim  ‘to  create  a  remuneration  structure  oriented 
towards the commercial economy in order to avoid outsourcing of economic sectors in the 
future’  and  appropriate  to  only  reduce  pay  for  those  groups  that  were  at  risk  of 
outsourcing.91 

The  State  Labour  Court  Cologne  did  not  consider  it  to  constitute  gender-based 
discrimination if an employer takes into account the willingness to work beyond regular 
working  hours  in  a  performance  evaluation,  which  in  turn  has  repercussions  on 
remuneration.  This  was  considered  true  even  if  it  affects  a  woman  with  family 
responsibilities.92 

When (gendered) bodies and/or public safety is  concerned, courts  have also jumped to 
conclusions.  Access  to  service  in  the  police  force  was  denied  for  a  female-to-male 
transgender  person  by  the  Administrative  Court  of  Frankfurt93  and  for  women  who  are 
under 163 cm tall by the Administrative Court of Düsseldorf,94 both of which invoked the 
efficiency of police forces and public safety. The first case raises questions of discrimination 
on  the  grounds  of  disability  because  the  rationale  of  the  denial  was  the  fact  that  the 
claimant cannot produce endogenous hormones.  In the second case, the court failed to 
explain why public safety is at risk by the employment of a female police officer who is 
161 cm tall, especially considering that in other German states95 the minimum height for 
female police staff is 160 cm. 

84   Federal Labour Court, judgment of 02 December 1992, 4 AZR 152/92.  
85   Federal Labour Court, judgment of 20 August 2002, 9 AZR 750/00. 
86   Federal Labour Court, judgment of 21 September 2021, 3 AZR 147/21. 
87   See e.g. regarding age discrimination, Federal Labour Court, judgment of 15 December 2016, 8 AZR 

454/15.  

88   CJEU judgment of 31 March 1981, C-96/80, Jenkins, Para. 12. 
89   Federal Labour Court (BAG), judgment of 15. December 2016, 8 AZR 454/15. 
90   Federal Labour Court, judgment of 8 June 2005, 4 AZR 412/04. 
91   Federal Labour Court (BAG), judgment of 26. January 2005, 4 AZR 171/03. 
92   State Labour Court (LAG) Cologne, judgement of 08. May 2009, 4 Sa 1225/08. 
93   Administrative Court of Frankfurt, judgment of 3 December 2007, 9 E 5697/06. 
94   Administrative Court of Düsseldorf, judgment of 2 October 2007, 2 K 2070/07. 
95   See Administrative Court of Berlin, judgment of 1 June 2017, 5 K 219.16, and State Administrative Court of 
Berlin and Brandenburg, judgment of 27 January 2017, OVG 4 S 48.16, confirming a minimum body height 
of 160 cm for female police officers in the state of Berlin.  

23 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

The Administrative Court of Schleswig-Holstein considered minimum height requirements 
for police officers to constitute unjustified indirect sex discrimination.96 The State Labour 
Court of Cologne agreed and questioned height requirements of 165 cm for pilots because 
a  various  number  of  different  height  requirements  were  imposed  for  plans  of  the  same 
type without further explanation.97 To promote gender equality and to avoid disadvantages 
for a far higher number of female compared with male applicants, the former Government 
of  North  Rhine-Westphalia  had  introduced  different  minimum  height  requirements  for 
female (163 cm) and male (168 cm) applicants for the police forces. In September 2017, 
the  State  Administrative  Court  of  North  Rhine-Westphalia  decided  that  different 
requirements  for male  and female applicants are incompatible  with constitutional law. 98 
The main formal99 argument was that the state Parliament (and not the Government) had 
to decide about requirements for the civil service that went beyond qualifications, aptitude 
and  professional  performance  as  established  by  the  Constitution.  Although  the  Court 
explicitly stated that it did not have to decide upon the argument that different minimum 
height requirements had been introduced to avoid indirect discrimination against female 
applicants, its decision was concluded with the obiter dictum that the promotion of women 
or gender equality must never put into question the constitutional principle of qualification. 
The  decision  was  made  prior  to  the  CEJU  decision  in  Kalliri.100  In  October  2017,  the 
Government  of  North  Rhine-Westphalia  introduced  a  standard  minimum  height 
requirement  for  female  and  male  applicants  for  the  police  forces  of  163 cm.  The  State 
Administrative Court of North Rhine-Westphalia decided that such a standard requirement, 
although excluding a quarter of female and only a very small number of male applicants, 
is  in  accordance  with  constitutional  and  European  law.101  The  Court  acknowledged  the 
standard minimum height requirement to constitute indirect sex discrimination,102 but held 
that this discrimination was justified by a minimum height of 163 cm being a genuine and 
determining occupational requirement under Article 14(2) of Directive 2006/54. The court 
explained that a height of 163 cm was the mandatory lower limit necessary to maintain 
the  police’s  ability  to  function  and  therefore  may  not  be  reduced  for  reasons  of  equal 
treatment, in short: that a reduction below an objectively determined aptitude was out of 
the question. Concerned with a height requirement of  162 cm, the State Administrative 
Court of Saarland decided that the state’s standard minimum height for police forces was 
indirect  sex  discrimination  justified  as  a  determining  occupational  requirement  under 
Article 14(2) of Directive 2006/54.103 

Another  problem  is  the  possibility  of  a  strong  gender  bias  in  the  proposed  objective 
justification. In August 2019, the Administrative Court of Berlin confirmed the decision of 
the  choirmaster  of  the  famous  Berlin  State  and  Cathedral  Choir  not  to  accept  a  girl  as 
singer  because  she  could  not  produce  the  specific  ‘boys’  choir  sound’.104  It  is  doubtful 
whether the discrimination in question is ‘indirect’ as the choir was and is advertised as a 
boys’ choir and encourages the application of boys only. At very least, the  Court should 
have dealt more deeply with the question of the gender-neutrality of the ‘boys’ choir sound’ 
criterion  and  with  the  assurance  of  the  choirmaster  that  he  would  accept  any  girl  who 
could produce this special sound given that he said that, in 30 years of working experience, 
he had only once met a girl ‘sounding like a boy’. 

96   Administrative Court of Schleswig-Holstein, judgment of 26 March 2015, 12 A 120/14.  
97   State Labour Court of Cologne, judgment of 25 June 2014, 5 Sa 75/14. 
98   State Administrative Court of North Rhine-Westphalia, judgment of 21 September 2017, 6 A 916/16; 
confirmed by State Administrative Court of North Rhine-Westphalia, judgment of 28 June 2018, 6 A 
2016/17.  

99   More than one administrative judge involved in lower-instance proceedings in North Rhine-Westphalia 

informed the media that ‘the promotion of women is not above everything’ and that highly qualified men 
were being discriminated against while less qualified women were given the jobs.  

100  Judgment of the Court (First Chamber) of 18 October 2017, Ypourgos Esoterikon and Ypourgos Ethnikis 

paideias kai Thriskevmaton v. Maria-Eleni Kalliri, Case C-409/16, ECLI:EU:C:2017:767.  

101  State Administrative Court of North Rhine-Westphalia, judgment of 28 June 2018, 6 A 2016/17. 
102  Obviously, the court was not considering the possibility of a constitutional obligation of legislation or the 

Government to further gender equality and to tackle (indirect but obvious) sex discrimination.  

103  State Administrative Court of Saarland, judgment of 25 March 2019, 1 B 2/19.  
104  Administrative Court of Berlin, judgment of 16 August 2019, 3 K 113.19.  

24 

 
 
Country report – Gender equality – Germany – 2023 

The national courts’ approach towards objective justification concerning cases of indirect 
sex  discrimination  linked  to  parental  leave  seems  more  closely  aligned  with  the  strict 
criteria  set  by  the  CJEU  and  the  detailed  consideration  of  the  legitimate  aim  as  well  as 
necessity  and  appropriateness.  Accordingly,  the  assessment  is  based  on  the  aim  of  the 
measure.  While  long-term  leave  (including  parental  leave)  may  impact  seniority  that  is 
focused on rewarding experience,105 parental leave should not reduce redundancy pay, as 
the latter is directly focused on status protection and is thus impacted by the pay prior to 
the redundancy.106 Interestingly, it considered it necessary to include periods of parental 
leave when calculating the time of service for the purpose of redundancy. 

3.3.4  Specific difficulties 

There  are  some  difficulties  in  applying  the  concept  of  indirect  sex  discrimination.  The 
Federal Constitutional Court explicitly recognised the European concept of indirect gender 
discrimination as also applying under German constitutional law: the German courts did a 
very good job in tackling indirect sex discrimination embodied in the discrimination against 
part-time  workers,  especially  before  the  Part-Time  and  Fixed-Term  Employment  Act 
entered into force.107 The Federal Labour Court has also applied the concept of indirect sex 
discrimination  with  reference  to  statistical  data  within  the  context  of  part-time  work.108 
These  are  usually  clear  cut  cases,  and  deal  with  situations  where  up  to  95 %  of 
disadvantaged part-time workers are female. 

Beyond  that,  the  use  of  statistical  evidence  is  less  certain.  Namely,  it  is  unclear  what 
statistical difference is deemed to be significant. It has been suggested that the statistical 
evidence  is  supposed  to  ‘prove’  that  the  deviation  is  indeed  related  to  the  protected 
characteristics,109  ignoring  the  role  of  the  objective  justification  in  that  regard.  How  to 
identify the correct pool of comparators is also not always certain. For example, the Federal 
Labour Court has suggested that a rule that inhibited or reduced seniority in the case of 
long-term  absence  did  not  prima  facia  disadvantage  women,  because  the  rules  did  not 
only  relate  to parental  leave but  also included  other  types  of voluntary  leave.  Why  this 
was relevant is not obvious. First, the measures in question did distinguish between the 
different  types  of  leave.  Second,  even  in  a  joint  consideration,  women  would  be 
disadvantaged, since it is not obvious why they are less likely to take the other types of 
voluntary  leave  than  men.  Only  in  the  second  step  the  Labour  Court  considered 
disadvantages of women by focusing on parental leave only.110 

Indirect  sex  discrimination  law  has  also  played  a  limited  role  in  cases  concerned  with 
gender-related division of labour and care work, and when discrimination is rooted in job 
classification  systems  of  collective  agreements  due  to  a  specific  understanding  of  the 
autonomy of collective bargaining (freedom of coalition) under the German Constitution. 
Moreover,  courts  tend  to  ask  for  a  special  discriminatory  context  or  discriminatory 
intention  and  reveal  problems  in  identifying  comparable  groups  and  in  dealing  with 
statistical data.111 

105  Federal Labour Court, judgment of 27 January 2011, 6 AZR 526/09. 
106  Federal Labour Court, judgment of 22 September 2009, 1 AZR 316/08. 
107  E.g. Federal Constitutional Court, judgment of 27 November 1997, 1 BvL 12/91, with reference to Bilka and 

Barber. The same might be true for tackling indirect discrimination embodied in protective regulations: the 
most famous decision was delivered by the Federal Constitutional Court, judgment of 28 January 1992, 
1 BvR 1025/82, declaring the law prohibiting night work for women null and void.  

108  Federal Labour Court, judgment of 20 November 1990, 3 AZR 613/89.  
109  Thüsing, ‘AGG § 3 Begriffsbestimmung’ (General Equal Treatment Act Section 3 Definitions) in Franz Jürgen 

Säcker et al (eds) Münchener Kommentar zum BGB (9th Edition, Beck, 2021), marginal number 31. 

110  Federal Labour Court, judgment of 27 January 2011, 6 AZR 526/09. 
111  See Sacksofsky, U. (2010), Mittelbare Diskriminierung und das Allgemeine Gleichbehandlungsgesetz 

(Indirect discrimination and the General Equal Treatment Act), Berlin, pp. 21ff. 

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Country report – Gender equality – Germany – 2023 

  Multiple discrimination and intersectional discrimination112 

3.4.1  Definition and explicit prohibition 

Multiple  discrimination  and/or  intersectional  discrimination  is  covered  by  German 
legislation. Unequal treatment on several grounds is explicitly addressed in  Section 4 of 
the General Equal Treatment Act which requires that the justification extends to all these 
grounds as well: ‘Where unequal treatment occurs on several of the grounds referred to 
under Section 1, this unequal treatment may only be justified under Sections 8 to 10 and 
20  when  the  justification  extends  to  all  those  grounds  for  which  the  equal  treatment 
occurred.’ Nevertheless, there is some discourse in Germany asserting that there would 
be no legal protection against multiple or intersectional discrimination. 

Under  the  General  Equal  Treatment  Act,  applicants  may  simultaneously  invoke  several 
grounds  of  discrimination  in  the  same  claim  and  the  statutory  legal  framework  would 
provide for greater chances of success and even higher damages. But there are several 
obstacles. First, the number of anti-discrimination cases is low and thus, there is a lack of 
experience  and  routine  within  the  courts.  Secondly,  it  has  been  considered  that  the 
provision does not  require a  real comparator and that the protected characteristic does 
not have to be the sole reason for the disadvantage.113 Thirdly, in respect to goods and 
services, different statutory provisions and protection levels apply for protection against 
racist discrimination and other forms of discrimination. Finally, large parts of the literature 
question  the  practical  relevance  of  intersectionality  in  the  context  of  the  General  Equal 
Treatment  Act.  Accordingly,  it  is  not  too  surprising  that  many  courts  struggle  with  the 
proper application of the concept of indirect discrimination in that context, as can be seen 
in cases concerning disadvantages due to wearing a Muslim headscarf.114 That being said, 
the CJEU may also halt further development. For example, in the preliminary reference in 
WABE,  the  Labour  Court  Hamburg  explicitly  referred  to  the  fact  that  neutrality  policies 
disadvantage Muslim women almost exclusively and wondered about the relevance of EU 
sex discrimination law within that context.115 However, the CJEU refused to engage with 
substantive  considerations  related  to  sex  discrimination  and  thus  intersectionality, 
because the court failed to reference the relevant legal provisions. 

112  See for more information Fredman, S. (2016), Intersectional discrimination in EU gender equality and non-
discrimination law, European network of legal experts in gender equality and non-discrimination, available 
at: https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-
non-discrimination-law-pdf-731-kb. 

113  Zimmer, R. (2022), ‘section 4 paragraphs 19-21’ in Däubler, W. (ed.) Kommentar Allgemeines 

Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden. 

114  References and critique by Baer, S. & Wrase, M. (2006), ‘Zwischen Integration und “westlicher” 

Emanzipation: Verfassungsrechtliche Perspektiven zum Kopftuch(-verbot) und der Gleichberechtigung’ 
(Between integration and ‘Western’ emancipation: (prohibitions of) headscarf and gender equality), in: 
Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft (KritV) Vol. 89, No. 4, Schwerpunkt: 
Menschenwürde, pp. 401-416. In cases concerning ‘neutrality statutes’ formally prohibiting the wearing of 
religious clothing at work but in fact applying nearly solely to Muslim women wearing the headscarf, the 
courts still focus solely on possible violations of religious freedom and discrimination on the grounds of 
religion and do not analyse the intersectional and partly indirect discrimination on the grounds of religion, 
gender and racist attributions, e.g. State Labour Court of Berlin and Brandenburg, judgment of 
27 November 2018, 7 Sa 963/18. As claimants are fully aware of this self-restriction of the courts, they 
restrict their own legal argument to questions of freedom of religion and religious equality.  

115  CJEU, Case C-804/18 WABE/Müller, 15 July 2021 EU:C:2021:594. 

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Country report – Gender equality – Germany – 2023 

3.4.2  Case law and judicial recognition 

There is limited case law on intersectionality.116 The main reason for this is that the courts 
do not realise that they are dealing with multiple/intersectional discrimination and that the 
vast majority of claimants do not focus on this question but tend to focus on the ground 
of discrimination that will enable them to win the case. 

Broad  discussions  about  the  Muslim  headscarf  and  its  alleged  anti-emancipatory 
implications did not encourage the courts to raise the question of whether the ban on the 
Muslim  headscarf  in  the  civil  service  and  in  teaching  in  schools  would  constitute  direct 
discrimination  on  the  grounds  of  religion  intertwined  with  indirect  discrimination  on  the 
grounds of gender and racial prejudice.117 The Federal Constitutional Court has recognised 
that  Muslim  women  were  particularly  affected  by  neutrality  requirements  that  include 
headscarf bans. As such, it acknowledges that these requirements can raise questions of 
gender equality. Concerned with neutrality requirements of teachers, it has also required 
a  real  and  demonstrable  risk  to  the  peace  of  the  school.118  However,  gender  equality 
concerns are not fully developed within the case law, as the Court all too often considers 
the  ban  on  headscarves  justified  simply  because  of  neutrality  requirements  within  the 
public service, e.g. within the judiciary.119 

When  young  men  of  an  alleged  foreign  ethnic  origin  are  denied  access  to  clubs  and 
discotheques, some courts have identified intersectional discrimination on the grounds of 
gender and racial prejudice,120 while some solely focus on the racist implications.121 Even 
the courts assuming intersectional discrimination, neither explained the specific gendered 
racism in these cases nor did they further develop the consequences of their assumption, 
especially concerning justification and damages. 

In 2017, the Federal Labour Court with reference to Parris122 held that Section 4 requires 
the separate consideration of each protected characteristic. The focus is thus on multiple 
discrimination  and  does  not  cover  situations  where  the  combination  of  several  grounds 
creates  a  new  form  of  discrimination  that  cannot  be  demonstrated  by  separate 
consideration of each ground.123 

  Positive action124 

3.5.1  Definition and explicit prohibition 

As  means  to  achieve  gender  equality  and  freedom  from  discrimination,  positive  action 
measures  are  part  of  German  non-discrimination  law.  Section 5  of  the  General  Equality 
Act states that ‘unequal treatment shall only be permissible where suitable and appropriate 

116  See Baer, S., Bittner, M., Göttsche, A.L. (2010), Mehrdimensionale Diskriminierung – Begriffe, Theorien 
und juristische Analyse (Multidimensional discrimination – conceptions, theories and legal analysis), 
www.antidiskriminierungsstelle.de/SharedDocs/Downloads/DE/publikationen/Expertisen/Expertise_Mehrdim
ensionale_Diskriminierung_jur_Analyse.pdf. 

117  The Federal Labour Court, judgment of 12 August 2010, 2 AZR 593/09, stated without any further 

reasoning that there was no gender discrimination involved.  

118  Federal Constitutional Court, judgment of 27 January 2015, 1 BvR 471/10, 1181/10.  
119  Constitutional Court (BVerfG) judgment of 27 June 2017, 2 BvR 1333/17 confirmed in judgment of 

14 January 2020, 2 BvR 1333/17.  

120  e.g. Higher Regional Court of Stuttgart, judgment of 12 December 2011, 10 U 106/11; District Court of 

Oldenburg, judgment of 23 July 2008, E2 C 2126/07. 

121  e.g. District Court of Bremen, judgment of 20 January 2011, 25 C 278/10; District Court of Hannover, 

judgment of 14 August 2013, 462 C 10744/12.  

122  CJEU, Case C-443/15 Parris, 24 November 2016, EU:C:2016:897. 
123  Federal Labour Court, judgment of 23 November 2017, 8 AZR 372/16. 
124  See for more information McCrudden, C. (2019), Gender-based positive action in employment in Europe. A 
comparative analysis of legal and policy approaches in the EU and EEA, 2019, European network of legal 
experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-
1-9-mb. 

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Country report – Gender equality – Germany – 2023 

measures are adopted to prevent or compensate for disadvantages arising on any of the 
grounds.’  The  provision  does  not  impose  any  obligations  on  private  employers. 
Section 5(2)  of  the  Berlin  State  Anti-Discrimination  Act  states  that  ‘a  difference  in 
treatment is also justified if suitable and appropriate measures are intended to prevent or 
compensate for existing disadvantages of structurally disadvantaged persons due to one 
or more of the’ protected characteristics. The role of compensatory measures seems to go 
beyond the CJEU’s focus on positive actions that ensure equal opportunities rather than 
compensate  for  past  disadvantages.125  However,  the  courts’  interpretation  of  possible 
positive action is very narrow (see discussion below) and takes into account the limits of 
the CJEU case law. 

According  to  Article 3(2)(2)  of  the  Federal  Constitution,  public  entities  are  under  an 
obligation  to  further  women’s  equality  in  actual  practice.  There  has  always  been  legal 
debate  about  the  content  and  extent  of  this  provision.126  Based  on  this  constitutional 
requirement the Federal  legislator (Bundestag) and the states (Länder) legislators have 
enacted laws to further equality between the sexes (see below 3.5.5.).127 

3.5.2  Conceptual  distinctions  between  ‘equal  opportunities’  and  ‘positive  action’  in 

national law 

There is strong antipathy towards positive action measures in German legal and political 
discourse and the term is rarely used. The focus is rather on ‘equal opportunities’. 

Some  of  the  regulators  as  well  as  the  implementing  authorities  use  the  term  ‘equal 
opportunities’ strategically as a kind of appeasement policy to  avoid the terms ‘positive 
action’,  ‘affirmative  action’  or  ‘gender  quota’,  while  in  fact  employing  positive  action 
measures to reach substantive equality. In 1994, immediately after amendments to the 
Constitution introducing Article 3(2)(2) of the Basic Law, the political parties involved in 
the amendments could not agree upon the question of whether positive action measures 
were now compatible with the Constitution or, on the contrary, excluded. Until this very 
day and despite the rulings of the Federal Constitutional Court as well as the CJEU and the 
subsequent  statutory  amendments,  many  judges,  lawyers  and  legal  scholars  claim  that 
positive  action  measures,  especially  quotas,  would  impair  the  principle  of  equal 
qualification,  aptitude  and  professional  performance.128  Since  any  German  quota 
regulation presupposes the same qualification, aptitude and performance of applicants, it 
is impossible that they come into conflict with the principle of merit. They only apply once 
equal merit is established. As such, they may not even achieve equal opportunities, given 
that  gender  biases  and  stereotypes  that  demonstrably  disadvantage  women  during 
qualification assessments are not addressed.129 

125  CJEU, C-173/13 Leone v Garde des Sceaux, 17 July 2014, EU:C:2014:2090. 
126  Federal Constitutional Court, judgment of 28 January 1992, 1 BvR 1025/82, 1 BvL 16/83, 1 BvL 10/91, 

BVerfGE 85: 191-214 (Nachtarbeitsverbot), 
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/1992/01/rs19920128_1bvr102
584.html.  

127  A compilation of the federal and state equality statutes is available at: 

https://www.vernetzungsstelle.de/themen/gleichstellung-in-der-verwaltung/gleichstellungsgesetze. The 
statutes are legally binding, but their effectiveness can be debated. In particular, the Federal Equality Act 
does not work too well concerning leading positions within the federal administration, especially the 
administration of the Federal Government.  

128  An especially unfortunate example was given by the Association of German Administrative Court Judges 

(2016), ‘Stellungnahme zu dem Antrag zur Reform der Wahl für die obersten Bundesgerichte vom 
17 Februar 2016’ (Statement on the draft law on the reform of elections to the federal courts), who claimed 
that gender quotas would ‘inevitably conflict with the principle of performance enshrined in the constitution’ 
and that there was great danger of the election of a less qualified female candidate.  

129  Glöckner, A., Towfigh, E. and Traxler, E., (2017) Empirische Untersuchung zur Benotung in der staatlichen 
Pflichtfachprüfung und in der zweiten juristischen Staatsprüfung in Nordrhein-Westfalen von 2006 bis 2016 
(Empirical study on grading in the law state examination in North Rhine-Westphalia from 2006 to 2016) 
www.towfigh.net/wp-content/uploads/180331-v.fin-Abschlussbericht-korr.pdf demonstrates a clear bias 
against women and ethnic minorities in the oral examination.  

28 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

It  has  been  pointed  out  that  the  elimination  of  disadvantages,  in  particular  structural 
discrimination  and  harmful  gender-role-typing  stereotypes,  may  require  different 
government  measures  depending  on  the  situation.130  The  state’s  obligation  to  enforce 
equal  rights  in  Article 3(2)(2)  of  the  Basic  Law  makes  it  clear  that  the  prohibition  of 
discrimination on the grounds of sex/gender not only aims at formal equal treatment, but 
always  at  the  elimination  of  actual  disadvantages  as  well,  meaning  there  is  a  state 
obligation to guarantee equality in freedom as well as the individual right of women not to 
suffer disadvantages solely because of their sex/gender.131 

3.5.3  Specific difficulties 

The room for positive action under the General Equal Treatment Act is narrow. Some case 
law  suggests  that  positive  action  measures  by  private  employers  run  a  high  risk  of 
constituting prohibited gender discrimination.132 

The key controversy  still relates to the scope of Article 3(2) of the Constitution and the 
types  of  positive  action  that  are  allowed  under  its  scope.  It  is  unclear  to  what  degree 
structural gender inequality can be recognised and whether positive actions can indeed go 
beyond  gender-neutral  rules  to  encourage  equal  participation.  For  example,  given  the 
CJEU case law, it is unclear to what degree biases within the assessment process can be 
addressed, given the focus on equal qualification. In particular, this relates to the equality 
acts, discussed under 3.5.5. 

3.5.4  Measures to improve the gender balance on company boards133 

Germany  had  already  adopted  measures  that  aim  to  improve  the  gender  balance  on 
company  boards  prior  to  Directive 2022/2381  on  improving  the  gender  balance  among 
directors of listed companies and related measures. 

The  Act  on  the  equal  participation  of  women  and  men  in  leading  positions  of  private 
companies and in the civil service, adopted on 6 March 2015, introduced a statutory 30 % 
gender  quota  for  supervisory  boards  of  the  100  most  important  private  companies  in 
Germany, to be achieved by 2016 (first Führungspositionen-Gesetz, FüPoG).134 In cases 
of non-compliance, the election is void and the seat designated for a member of the under-
represented  gender  remains  vacant.  In  addition,  the  Act  obliges  many  important 
companies  to  publish  target  gender  quotas  for  boards  and  positions  at  the  highest 
management  level.  Critics  pointed  to  the  narrow  scope  of  application  and  doubt  the 
effectiveness of the sanctions, calling for statutory gender quotas on executive boards and 

130  See Baer, S., Markard, N. (2018), ‘Article 3(2) of the Basic Law’, in v. Mangoldt/Klein/Starck (Begr.), 

Grundgesetz. Kommentar, 7th ed., para 367ff; Sacksofsky, U. (2002), ‘Article 3(2)(3) of the Basic Law’, in: 
D. C. Umbach/T. Clemens (Hrsg.), Grundgesetz. Mitarbeiterkommentar, Band I, para 350ff. 

131  See Baer, S., Markard, N. (2018), ‘Article 3(2) of the Basic Law’, in v. Mangoldt/Klein/Starck (Begr.), 

Grundgesetz. Kommentar, 7th ed., para 355; Sacksofsky, U. (2002), ‘Article 3(2)(3) of the Basic Law’, in 
D. C. Umbach/T. Clemens (Hrsg.), Grundgesetz. Mitarbeiterkommentar, Band I, para 349, 353. Nußberger, 
A. (2018), ‘Article 3(2) of the Basic Law’, in: Sachs (Hrsg.), Grundgesetz. Kommentar, 8th ed., para 261, 
regards the elimination of actual disadvantages of women as the state’s duty to protect (which, in the light 
of statistical findings, impacts in particular on the professional situation of women).  

132  E.g. Labour Court of Berlin, judgment of 5 June 2014, 42 Ca 1530/14 (female only with migration 

background for media traineeship), judgment: 
https://www.hensche.de/Arbeitsrecht_Urteile_Diskriminierung_Maenner_Diskriminierung_von_Maennern_t
ageszeitung_ArbG_Berlin_42Ca1530-14.html.  

133  See for more information Senden, L. and Kruisinga, S., (2018) Gender-balanced company boards in 

Europe. A comparative analysis of the regulatory, policy and enforcement approaches in the EU and EEA 
Member States, available at: https://www.equalitylaw.eu/downloads/4537-gender-balanced-company-
boards-in-europe-pdf-1-68-mb. 

134  Act on the equal participation of women and men in leading positions of private companies and in the civil 
service (Gesetz für die gleichberechtigte Teilhabe von Frauen und Männern an Führungspositionen in der 
Privatwirtschaft und im öffentlichen Dienst) of 24.04.2015 Official Journal (BGBl I), p. 642.  

29 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

at higher management levels, as well as more effective sanctions, such as the invalidity 
of the resolutions of the non-compliant board or corporate tax disadvantages.135 

In  August  2021,  the  second  Führungspositionen-Gesetz  (FüPoG  II)  came  into  force.  As 
indicated by its name, it modifies and expands the obligations to ensure equal participation 
of women and men in leading positions  in private companies and in the civil  service. It 
covers private and public sector companies in Germany. Listed co-determined (paritätisch 
mitbestimmt) companies’ executive boards have to appoint at least one woman and one 
man,  if  the  board  includes  more  than  three  members  (Article 7  FüPoG  II  introduces 
Section 76 IIIa Aktiengesetz, Companies Act). The same applies to SEs if listed and with 
more  than  three  executive  directors,  whether  their  organisation  is  dualistic  or  monistic 
(two  or  one  tier).  The  rules  apply  to  those  directors  who  are  appointed  after 
1 August 2022. An appointment contrary to these rules is void, and the chair thus stays 
empty. It has been suggested that this is a more effective measure within the context of 
the  executive  board  than  the  supervisory  board,  as  the  latter  is  able  to  accommodate 
empty seats more easily. 

The quota of women (or men) does not increase in relation to the number of executive 
directors. It is always only necessary to appoint one woman (or man). Contrary to original 
plans,  the  30 %  quota  has  not  been  expanded  to  include  supervisory  boards  of  co-
determined limited companies. The updated law certainly cannot ensure 40 % of women 
representation within executive boards and supervisory boards. Lack of representation in 
one organ can also not be balanced out by ‘over-representation’ in the other organ. 

The  binding  statutory  30 %  gender  quota  for  supervisory  boards  covers  about  100 
companies in Germany. On average, these companies currently fulfil their legal obligation 
of 30 % female supervisory board members. 

Stricter rules apply to companies with public sector majority holdings, including SEs and 
limited companies. Here, the 30 % quota within the advisory boards applies whether the 
company  is  listed  and  co-determined  or  not  (Section 393  a  I  Aktiengesetz,  Companies 
Act). The requirement to appoint one woman (or man) already applies once the executive 
board has more than two members. Other bodies governed by public law (Körperschaften 
des  öffentlichen  Rechts),  such  as  health  insurance  funds  and  pension  and  accident 
insurance institutions as well as the Federal Employment Agency, also include a minimum 
representation  requirement.  It  is  estimated  that  this  affects  about  250  companies  and 
public bodies. 

In the civil service, the quota requirements can only be fulfilled by applying the regulations 
on the preferential  recruitment or promotion of  equally qualified women, but the law is 
silent  as  to  how  private  companies  must  reach  the  30 %  gender  quota  on  supervisory 
boards. With reference to the ‘quota decisions’ of the CJEU as well as Article 157 TFEU and 
Article 23(1)  of  the  Charter,  two  legal  essays  (with  very  similar  wording  in  this  regard) 
claim  the  incompatibility  of  the  quota  requirement  for  supervisory  boards  of  100 
companies  with  European  law.136  As  far  as  can  be  seen,  this  opinion  has  not  been 
confirmed by any court. 

In  addition,  the  rules  on  the  flexible  gender  quota  targets  and  positions  at  the  highest 
management level have become more stringent. The 2015 Act allowed for flexible targets; 
companies  could  choose  their  own  target.  However,  the  target  could  not  undercut  the 
current representation  of  women as long as  representation  of women  was below 30 %. 

135  See German Women Lawyers’ Association, Statement of 7 October 2014, https://www.djb.de/verein/Kom-

u-AS/K1/st14-17/, and the Berlin declaration by 17 women’s organisations, available at: 
https://www.djb.de/st-pm/pm/pm18-04/. 

136  Olbrich, H. & Krois, C. (2015), ‘Das Verhältnis von “Frauenquote” und AGG’, in Neue Zeitschrift für 

Arbeitsrecht, S. 1288 (1291), and Schleusener, A. (2016), ‘Diskriminierungsfreie Einstellung zwischen AGG 
und Frauenförderungsgesetz’, Neue Zeitschrift für Arbeitsrecht – Beilage, S. 50 (54).  

30 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

This rule was widely ineffective, as there were no effective sanctions if no target was set 
or  if  the  target  was  set  at  zero.  Unsurprisingly,  75 %  of  all  MDAX-listed  companies  set 
themselves a 0 % gender quota regarding their executive boards for the first period until 
30  June  2017.137  Consequently,  little  progress  has  been  made  in  terms  of  equal 
representation. 

FüPoG II now introduces a requirement to justify a zero-quota target regarding its board 
and the two highest levels of leadership below the level of the board (and advisory board). 

For example, according to Section 76 IV sentence 2-4 Companies Act, quota targets need 
to correspond to a full person. If the target is zero, it has to be justified in an accessible 
and  understandable  manner  and  needs  to  include  the  considerations  that  led  to  the 
decision (‘comply or explain’). Explanation should provide the public  with a diligent and 
plausible  decision.  The  Act  also  introduces  duties  to  report  and  sanctions  within  the 
Commercial Accounting Law (Handelsbilanzrecht). Section 289f II No. 4 Commercial Code 
(Handelsgesetzbuch, HGB) on the Declaration on Corporate Governance now requires this 
explanation to be reported. Ignoring the requirement can lead to fines for misdemeanours 
(Section 334 I No. 3 and 3a HGB). They can potentially be significant. 

Since then, a slow increase of female representation has been noted in some areas, but 
the need for additional legal requirements were also noted. While there are more women 
on  executive  boards  in  many  companies,  the  increase  in  DAX  30  companies  has 
stagnated.138  Following  the  legal  amendment,  markedly  more  female  executive  board 
members  have  been  appointed  across  the  board.139  These  are  primarily  anticipatory 
effects, since the law applies to appointments only from August 2022, but it demonstrates 
the possible impact of legal intervention. 

Beyond  this  there  are  currently  no  plans  to  further  implement  Directive 2022/2381. 
Indeed,  the  Government  has  indicated  that  it  will  make  use  of  the  opt-out  clause  of 
Article 12(1)(b)  of  the  Directive.140  It  seems  that  the  requirements  outlined  above  are 
indeed sufficient to allow of an opt-out.141 

3.5.5  Positive action measures to improve the gender balance in other areas 

private 

Within 
Act 
(Betriebsverfassungsgesetz)  requires  that  ‘the  gender  that  is  in  the  minority  in  the 
workforce must be represented in the works council at least in proportion to its numerical 
ratio if it consists of at least three members.’142 

Section 15(2) 

employment, 

Constitution 

Work 

Federal and state federal laws have been passed to promote the equal representation of 
women within the civil  service. On  federal level this includes the  Act for the  equality of 
women and men (Bundesgleichstellungsgesetz – BgleiG) which applies exclusively to the 

137  See http://www.spiegel.de/karriere/frauenquote-in-mdax-unternehmen-keine-weiblichen-vorstaende-a-

1135060.html. 

138  Kirsch, A. and Wrohlich, K. (2021), ‘Number of women on boards of large firms increasing slowly; legal 

requirements could provide momentum’ (3/4) DIW Weekly Report, available at: 
https://www.diw.de/documents/publikationen/73/diw_01.c.809495.de/dwr-21-03.pdf.  

139  Kirsch, A., Sondergeld, V. and Wrohlich, K. (2022) 3/4 DIW Weekly Report, pp. 20-31 available at: 

https://www.diw.de/de/diw_01.c.834209.de/publikationen/weekly_reports/2022_03_2/markedly_more_wo
men_on_executive_boards_of_large_companies__inclusion_requirement_seemingly_already_having_an_eff
ect.html. 

140  BMFSJ (25 November 2022) www.bmfsfj.de/bmfsfj/aktuelles/alle-meldungen/lisa-paus-ein-meilenstein-

fuer-die-gleichstellung-in-europa--205236. 

141  Kürten, C. et al, Führungspositionen-Richtlinie: (Einheitliche) europaweite Geschlechterquoten für 

börsennotierte Gesellschaften? (15 December 2022) www.cmshs-
bloggt.de/rechtsthemen/sustainability/sustainability-corporate-governance-risk-
compliance/fuehrungspositionen-richtlinie-einheitliche-europaweite-geschlechterquoten-fuer-
boersennotierte-gesellschaften/.  

142  Act from 23 July 2001, BGBl. I S. 1852. 

31 

 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

federal administration and to federal companies and courts and highest federal authorities. 
It was significantly reformed in 2021, via the Act on the additions and modifications of the 
rules  on  the  equal  participation  of  women  and  men  in  leading  positions  of  private 
companies and in the civil service (Führungspositionen-Gesetz, FüPoG II).143 For example, 
the amended Appointments to Federal Bodies Act (Bundesgremienbesetzungsgesetz) aims 
to  ensure  parity  between  men  and  women.  Accordingly,  within  public  service,  federal 
essential  and  supervisory  bodies  with  at  least  two  members  should  have  an  equal 
representation 
Federal  Committees  Act, 
Bundesgremiengesetz,  as  amended).  This  is  a  legally  binding  obligation.  Its  aim  is  to 
achieve parity by the end of 2025. The FüPoG I and II also include legal requirements for 
private listed companies (details discussed below). 

and  women 

(Article 4, 

of  men 

The equality acts (Gleichstellungsgesetze) on federal and state level contain obligations to 
further gender equality, including affirmative action and positive measures such as gender 
quotas  as  well  as  the  nomination  of  equal  opportunity  officers  and  measures  for  the 
reconciliation of working and family life. Most of these statutes oblige public institutions to 
enact plans to increase women’s representation in all levels of employment, and to hire or 
promote women instead of equally qualified men, unless there are exceptional reasons to 
decide in favour of the male candidate. These general regulations seem in compliance with 
Article 157(4) TFEU, but their compatibility with CEDAW and their efficiency in practice is 
questionable. Some states have started to amend their equality laws and acts on the civil 
service in recent years, especially by introducing gender quotas with the requirement of 
substantially  equal  qualification  for  the  civil  service.144  This  requires  essential  equal 
qualification but is less formalistic because it focuses on equivalent overall assessment in 
a flexible manner. For example, a difference between 0.1 points in marks and assessment 
may not lead to the conclusion that one is more qualified than the other. With reference 
to  Abrahamsson  und  Anderson145  it  has  been  argued  that  this  complies  with  the 
requirement of ‘equivalent or substantially equivalent merit’.146 However, they have been 
challenged in court. For example, in North Rhine-Westphalia the state administrative court 
rejected that substantially equal qualifications could be established through an equivalent 
overall evaluation.147 

Overall, positive actions measures have had some impact. The annual equality index for 
2022 did identify some increase in women’s representation and female leadership within 
the highest federal administrative bodies but indicated that further steps have to be taken 
to achieve parity in 2025.148 

Women quotas within the public service remain controversial. A key controversy remains 
the scope of flexible quotas that can exist within the (possible) constraints of constitutional 
and EU law. The current system allowing for individual assessment of merit and hardship 
clauses  within  the  civil  service  seems  to  invite  overly  complex  systems  of  qualification 
assessment  leading  to  the  result  that  there  are  hardly  ever  two  persons  with  equal 

143  Gesetz zur Ergänzung und Änderung der Regelungen für die gleichberechtigte Teilhabe von Frauen an 

Führungspositionen in der Privatwirtschaft und im öffentlichen Dienst of 7 August 2021, Official Journal 
2021 (BGBl I Nr 51) page 3311. 

144  E.g. North Rhine-Westphalia (old law), § 9 Gesetz zur Gleichstellung von Frauen und Männern im 

öffentlichen Dienst des Landes Mecklenburg-Vorpommern (Law on Equal Opportunities for Women and Men 
in the Public Service of the State of Mecklenburg-Western Pomerania). 

145  CJEU, C-407/98 Abrahamsson und Anderson, judgment of 6 July 2000, EU:C:2000:367 para. 62. 
146  Further discussed here: Deutscher Juristinnenbund e.V.: "Frauenquote" im nordrhein-westfälischen 
Beamtenrecht - die vorsichtige Weiterentwicklung in NRW sollte nicht in Frage gestellt warden, 
www.djb.de/presse/stellungnahmen/detail/pm16-
22?actbackPid=69&cHash=ecfbcd95acf18789f73ad856c1991421.  

147  State Administrative Court of North Rhine-Westphalia, judgment of 21 February 2017, 6 B 1109/16.  
148  Federal Statistical Office (2023), Gleichstellungsindex 2022. Gleichstellung von Frauen und Männern in den 
obersten Bundesbehörden (Equality Index 2021. Equality between men and women in the highest federal 
administrative bodies), www.destatis.de/DE/Themen/Staat/Oeffentlicher-Dienst/Publikationen/Downloads-
Oeffentlicher-Dienst/gleichstellungsindex-5799901227004-1_2021449.pdf; BfFSFJ, Frauen in 
Führungspositionen: Entwicklung seit 2015 (Women in leadership positions: development since 2015) 
www.bmfsfj.de/quote. 

32 

 
 
 
 
Country report – Gender equality – Germany – 2023 

qualifications,  let  alone  a  man  and  a  woman.149  However,  once  simplifications  are 
introduced,  they  face  significant  resistance  because  of  the  distinction  between  positive 
actions and equal opportunities outlined above. CJEU case law on positive actions seems 
to support a similar limited understanding of possible positive actions. Indeed, while the 
Court may acknowledge that biases in assessments mean that women’s qualifications are 
often  not  recognised,150  the  insistence  on  ‘substantially  equal  qualifications’  does  not 
indicate how to address that dilemma. While we may all agree with the principle of equal 
merit,151  the  true  challenge  seems  to  be  how  bias  in  assessment  procedures  can  be 
avoided. In that context, it is worth noting the  Hessian Law on Equal Rights for Women 
and Men and on the Reduction of Discrimination against Women in Public Administration 
which was also the subject  of the dispute in  Badeck.152 The law  explores in detail what 
type of criteria are relevant for the assessment and explicitly includes experiences gained 
in domestic or voluntary work, if relevant for the qualification (Section 11). 

Amendments in some German states introducing treating ‘substantially equal qualification’ 
as  sufficient  in  civil  service  promotions  have  caused  mixed  reactions  by  the  courts.  In 
North  Rhine-Westphalia,  the  2016  modernisation  of  the  Civil  Service  Act  failed  because 
the State Administrative Court of North Rhine-Westphalia considered it incompatible with 
the  Constitution.153  While  the  Court  confirmed  that  women  could  enjoy  preferential 
treatment  in  promotions  in  the  case  of  ‘substantially  equal  qualification,  aptitude  and 
professional  performance’  unless  a  male  applicant  experienced  specific  hardships,  it 
rejected that merit could be established by way of an equivalent overall evaluation in the 
applicant’s latest assessment report. The new regulation was withdrawn prior to a State 
Constitutional Court judgment on the issue.154 As such, the former quota regulation was 
reinstated.155 

Many  of  the  state  legislations  also  use  gender-neutral  language,  meaning  that  men,  if 
under-represented in specific departments, may also benefit from preferential treatment. 
This  has  been  criticised  because  potential  under-representation  of  men  in  specific 
professions  or pay groups are not the consequence  of structural gender inequality. The 
lack of structural gender inequality that disadvantages men has been explicitly discussed 
in the context of the 2021 amendment of the Federal Act for the equality of women and 
men (Bundesgleichstellungsgesetz – BgleiG). Accordingly, any references to the potential 
preferential treatment of men in cases of under-representation have been deleted in the 
Act.156 A recent proposal for the amendment of the Hessian Law on Equal Rights for Women 
and Men also aims at including a reference to structural gender inequality.157 

149  This is the finding of a recent legal expertise study: Papier, H.-J, Heidebach, M. (2014), Rechtsgutachten 

zur Frage der Zulässigkeit von Zielquoten für Frauen in Führungspositionen im öffentlichen Dienst sowie zur 
Verankerung von Sanktionen bei Nichteinhaltung (Legal expertise on the legitimacy of fixed target women 
quotas for leading positions in the civil service and the implementation of sanctions in the case of non-
compliance), https://www.landtag.nrw.de/portal/WWW/dokumentenarchiv/Dokument/MMV16-2051.pdf.  
150  Judgment of the Court (Fifth Chamber) of 6 July 2000, Katarina Abrahamsson and Leif Anderson v. Elisabet 

Fogelqvist, Case C-407/98, 2000 ECR I-05539, ECLI:EU:C:2000:367.  

151  E.g. Langenfeld, C. (2015), ‘Article 3’, in Maunz/Dürig (Hrsg.), Grundgesetz. Kommentar, para. 95f.  
152  CJEU, C-158/97, Badeck and Others, judgment of 28 March 2000, EU:C:2000:163.  
153  State Administrative Court of North Rhine-Westphalia, judgment of 21 February 2017, 6 B 1109/16.  
154  Act on amendments to the Civil Service Act of North Rhine-Westphalia of 19 September 2017, 

https://www.landtag.nrw.de/portal/WWW/dokumentenarchiv/Dokument?Id=XMMGVB1729|764|765.  
155  State Administrative Court of North Rhine-Westfalia, judgment of 5 September 2019, 6 B 852/19. The 

judgment confirmed the return to the former regulation although it also decided that two more years of 
service and experience did not constitute a ‘specific hardship’ in favour of a male applicant. 

156  Parliamentary Documents (BT-Drs.) 19/26689, page 67 concerned with Article 2 No. 8; Gesetz zur 

Ergänzung und Änderung der Regelungen für die gleichberechtigte Teilhabe von Frauen an 
Führungspositionen in der Privatwirtschaft und im öffentlichen Dienst of 7 August 2021, Official Journal 
2021 (BGBl I Nr 51) page 3311. 

157  Hessian Parliament, Parliamentary Protocol (Drucksache) 20/9589, 23 November 2022 

https://starweb.hessen.de/cache/DRS/20/9/09589.pdf. 

33 

 
 
 
 
 
Country report – Gender equality – Germany – 2023 

When the State Constitutional Court of Mecklenburg-Western Pomerania was faced with 
the  question  whether  the  right  to  vote  and  to  stand  for  election  as  Equal  Opportunities 
Officer could be limited to women, it used the opportunity to explain the idea of structural 
discrimination and the suitable means to tackle  it.158 The Court held that Article 3(2) of 
the German Basic  Law  explicitly allows  for disadvantages generally suffered by women, 
especially in working life, to be compensated. The Court gave the opinion that the lack of 
the  reconciliation  of  working  and  family  life,  the  problem  of  sexual  harassment  at  the 
workplace and the small number of women in leading positions were all signs of structural 
gender discrimination. As long as structural discrimination was not effectively tackled, the 
legislature was authorised by the Constitution to use any means that are appropriate and 
necessary  to  end  this  discrimination.  Only  weeks  later,  the  State  Labour  Court  of 
Schleswig-Holstein agreed.159 Both courts showed that to attain gender equality as a goal, 
one cannot always use formal gender equality (formal equal treatment of the sexes) as a 
means and that, quite the opposite, the use of affirmative action or special measures is 
an essential tool in achieving substantial equality. 

Further,  every  German  state  has  its  own  procurement  statute  (Vergabegesetz)  and  the 
majority contain a regulation that the promotion of women by the (private) contractor can 
be considered as a possible social criterion when deciding on the procurement procedure 
and finally, the contract. However, public authorities are enabled,  rather than obliged to 
use this criterion. 

In  academia,  various  programmes  to  increase  the  number  of  female  researchers  and 
professors  exist  at  university,  state  and  federal  level.  One  of  the  most  important 
programmes during the last years was (and still is) the female professors programme run 
by  the  Federal  Ministry  of  Education  and  Research  in  cooperation  with  the  states. 
Universities qualify for participation in the programme through gender equality proposals 
that  are  externally  assessed.  Universities  that  submit  a  convincing  gender  equality 
proposal can apply for start-up funding for up to three professorships filled by women for 
a  period  of  five  years.  The  programme  is  now  in  its  fourth  round.  It  has  funded  845 
professorships until now.160 

Some political parties have adopted gender quotas in political candidate lists: the Greens 
and the Left (50 %), the Social Democratic Party (40 %), and the Christian Democratic 
Union  (30 %).  However,  following  the  elections  in  September  2017,  the  percentage  of 
female members of the Federal Parliament (Bundestag) dropped to a mere 30.7 % (from 
36.5 % in the preceding legislative period), which is the lowest percentage in the past 20 
years.161 The trend was reversed in 2021, with current representation at 34.8 %. 
Representation differs vastly between parties. 

The Greens and the Left party both send more than 50 % of women into Parliament (59 % 
and 54 % respectively). The Social Democratic Party also has a notable number of women 
in Parliament (42 %). Low representation can be found within the Alternative for Germany 
(13 %), Liberal Party (FDP) and the Christian Democratic Union (both 24 %).162 Between 
27.3 % and 43.9 % of members of the state Parliaments are female.163 

158  State Constitutional Court of Mecklenburg-Western Pomerania, judgment of 10 October 2017, LVerfG 7/16, 
available at: https://www.mv-justiz.de/gerichte-und-staatsanwaltschaften/landesverfassungsgericht/.  

159  State Labour Court of Schleswig-Holstein, judgment of 2 November 2017, 2 Sa 262 d/17.  
160  See for the fourth phase 2023-2030, www.bmbf.de/bmbf/de/forschung/gleichstellung-und-vielfalt-im-

wissenschaftssystem/frauen-im-wissenschaftssystem/das-professorinnenprogramm.html. 

161  See https://www.bpb.de/gesellschaft/gender/frauen-in-deutschland/49418/frauenanteil-im-deutschen-

bundestag.  

162  Bundeszentrale für politische Bildung (2021) Gewählte Abgeordnete, https://www.bpb.de/kurz-

knapp/zahlen-und-fakten/bundestagswahlen/341095/gewaehlte-abgeordnete/. 

163  See https://www.lpb-bw.de/frauenanteil-laenderparlamenten. 

34 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

In January 2019, the Brandenburg State Parliament adopted the first parité legislation in 
Germany, which entered into force in the summer of 2020, after the 2019 Brandenburg 
state  elections.164  Under  the  new  legislation,  half  of  the  electoral  list  positions  must  be 
allocated to women and the other half to men. In July 2019, the Thuringia State Parliament 
adopted  parité  legislation  to  enter  into  force  after  the  2019  state  parliamentary 
elections.165 The nomination of direct candidates was not affected by the new legislation. 
Legal expertise and legal opinion are strongly divided on the question of the compatibility 
of  parité  legislation  with  the  Constitution.  Following  an  action  for  judicial  review  from 
parties  with  low  female  representation,  both  laws  have  been  declared  unconstitutional. 
The State Constitutional Court in Thüringen166 and the Constitutional Court of Brandenburg 
declared  the  provisions  void  as  they  limited  the  equal  opportunities  of  some  political 
parties.  The  law  was  deemed  to  limit  the  freedom  of  elections,  as  it  predetermined  a 
significant part of the voters’ choice, and the parties’ right to act and appoint their most 
suitable/qualified candidates.167 

A  constitutional  complaint  against  Bavarian  election  laws  complaining  about  the  lack  of 
gender  equality,  was  equally  unsuccessful.  In  March  2018,  the  Bavarian  Constitutional 
Court decided that the Bavarian election laws do not violate the Bavarian Constitution but 
that  positive  action  measures  would  do  so.168  The  Court  emphasised  the  freedom  of 
electoral  decision  (while  factual  political  and  regional  quotas  in  electoral  lists  are  no 
problem,  gender  quotas  would  be)  and  the  freedom  of  political  parties  to  manage  their 
internal  organisation.  A  similar  complaint  at  federal  level  was  also  unsuccessful. 
Specifically,  the  Constitutional  Court  did  not  consider  it  sufficiently  demonstrated  why 
parité legislation was necessary within the context of gender equality and the principle of 
democracy. It thus did not consider such a law to be required by the Constitution.169 

  Harassment and sexual harassment 

3.6.1  Definition and explicit prohibition of harassment 

Harassment is explicitly prohibited in German legislation. Section 3(3) of the General Equal 
Treatment Act and Section 3(3) of the Equal Treatment of Soldiers Act contain definitions 
of  harassment  that  are  almost  exactly  the  same  as  that  in  Article 2(1)(c)  of 
Directive 2006/54 with only one exception: the German laws do not continuously employ 
the  term  ‘discrimination’  but  use  ‘Benachteiligung’  (putting  at  a  disadvantage),  without 
intending to weaken the protection as compared to the directives.  A similar definition is 
provided in Section 4(3) of the Berlin State Anti-Discrimination Act but with reference to 
‘discrimination’ rather than ‘disadvantage’. 

3.6.2  Scope of the prohibition of harassment 

The definition of harassment in Section 3(3) of the General Equal Treatment Act covers all 
areas of employment, as well as social security, social benefits, education and access to 
and the supply of goods and services. This seems to go beyond the requirements of the 
directives  covering  the  areas  of  social  protection  and  education  but  further  clarification 
and specific statutory entitlements are lacking. With respect to the provision of goods and 

164  See https://www.lto.de/recht/nachrichten/n/brandenburg-beschliesst-gesetz-gleichstellung-paritaet-frauen-

landtag/.  

165  Siebtes Gesetz zur Änderung des Thüringer Landeswahlgesetzes – Einführung der paritätischen Quotierung 

of 5 July 2019, see Plenary protocol at: https://www.thueringer-
landtag.de/uploads/tx_tltcalendar/protocols/Arbeitsfassung154.pdf.  

166  State Constitutional Court (Verfassungsgerichtshofs) Thüringen, judgment of 15 July 2020, Az. 9/2020, 

VerfGH 2/20 confirmed by Federal Constitutional Court (BVerfG) judgment of 6 December 2021, 
2 BvR 1470/20, ECLI:DE:BVerfG:2021:rk20211206.2bvr147020. 

167  State Constitutional Court of Brandenburg, judgment of 23 October 2020, VfgBbg 9/19. 
168  Bavarian Constitutional Court, judgment of 26 March 2018, Vf. 15-VII-16, available at: 

https://www.bayern.verfassungsgerichtshof.de/bayverfgh/rechtsprechung/.  

169  Federal Constitutional Court (BVerfG), judgment of 15 December 2020, 2 BvC 46/19, 

ECLI:DE:BverfG:2020:cs20201215.2bvc004619. 

35 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

services,  the  General  Equal  Treatment  Act  still  does  not  fulfil  the  requirements  of 
Directive 2004/113  in  that  it  contains  several  exceptions.  However,  all  published  court 
decisions deal with harassment in the workplace and not in any other context. 

3.6.3  Definition and explicit prohibition of sexual harassment 

Sexual  harassment  is  explicitly  prohibited  in  German  legislation.  Section 3(4)  of  the 
General  Equal  Treatment  Act  and  Section 3(4)  of  the  Equal  Treatment  of  Soldiers  Act 
contain  definitions  of  sexual  harassment  that  are  almost  exactly  the  same  as  in 
Article 2(1)(d)  of  Directive 2006/54  with  only  one  exception:  the  German  laws  do  not 
continuously  employ  the  term  ‘discrimination’  but  use  ‘Benachteiligung’  (putting  at  a 
disadvantage).  A  similar  definition  is  provided  in  Section 4(3)  of  the  Berlin  State  Anti-
Discrimination Act but with reference to ‘discrimination’ rather than ‘disadvantage’. 

3.6.4  Scope of the prohibition of sexual harassment 

Section 3(4) of the General Equal Treatment Act is restricted to the area of employment 
(Section 2(1)  No. 1-4).  According  to  the  prevailing  opinion  of  legal  commentaries,  this 
restriction is not applicable in the civil service. A European conform interpretation has to 
expand the scope.170 Legislation concerning education falls under the competence of the 
states and rules concerning the conduct on campus are subject to the internal regulations 
of the academic institution.171 

3.6.5  Understanding of (sexual) harassment as discrimination 

Section 3(3) and (4)  of the General Equal Treatment Act define harassment and sexual 
harassment as discrimination (Benachteiligungen). Section 16(2) of the Act states that the 
rejection or toleration of discriminatory conduct by an affected employee may not be used 
as the basis for a decision affecting this employee. 

3.6.6  Specific difficulties 

The  development  of  case  law  has  been  encouraging.  The  Federal  Labour  Court  drew  a 
distinction  between  harassment  and  sexual  harassment,  stating  that  the  latter  did  not 
require repeated behaviour.172 The presence of sexual harassment was to be determined 
objectively.173 In a 2017 landmark decision concerned with sexual harassment of a male 
temporary worker by a male permanent staff  member,  the Court confirmed that sexual 
harassment does not require sexual intentions and that the intentional touching of primary 
or secondary sexual organs constitutes a severe form of sexual harassment, irrespective 
of  the  sexual  orientation  or  preferences  of  the  perpetrator.174  The  Court  explained  that 
sexual  harassment  at  the  workplace  is  very  often  an  expression  of  hierarchies  and  the 
exercise of power rather than sexually determined pleasure. Further, the Court confirmed 
that  one  severe  assault  is  sufficient  to  constitute  sexual  harassment  and  that  the 
consequence  may  be  dismissal  without  notice  under  certain  circumstances.  The  State 
Labour  Court  of  Rhineland-Palatinate  adopted  a  similar  understanding  of  sexual 
harassment. The Court considered a demotion from a leadership position an appropriate 

170  Schiek (2007), ‘section 3 AGG’ in Schiek, Allgemeine Gleichbehandlungsgesetz (General Equal Treatment 

Act) Sellier European law Publisher, page 147.  

171  A comprehensive survey and analysis of different regulations on federal, state and university level, and 

proposals for the future based upon best practices are provided by Kocher, E., Porsche, S. (2015), Sexuelle 
Belästigung im Hochschulkontext – Schutzlücken und Empfehlungen (Sexual harassment in the higher 
education context – protection gaps and recommendations), available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/expertise_s
exuelle_belaestigung_im_hochschulkontext.pdf?__blob=publicationFile.  

172  Federal Labour Court, judgment of 20 November 2014, 2 AZR 651/13; Federal Labour Court, judgment of 2 

March 2017, 2 AZR 698/15 ECLI:DE:BAG:2017:020317.U.2AZR698.15.0. 

173  Federal Labour Court, judgment of 9 June 2011, 2 AZR 323/10. 
174  Federal Labour Court, judgment of 29 June 2017, 2 AZR 302/16, https://www.hensche.de/Arbeitsrecht-
urteile-BAG-2AZR302-16-29.06.2017-Ausserordentliche-Kuendigung-sexuelle-Belaestigung-u.html.  

36 

 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

measure to protect employees from future sexual harassment by a former line manager. 
Since  sexual  harassment  is  more  related  to  hierarchies  and  power  rather  than  sexual 
attraction,  reducing  that  power  was  deemed  an  effective  tool.  Moreover,  the  Court 
considered this to empower the employees who were targeted by the harassment, since 
they were in a better position to defend themselves.175 

However, the limitation to the sphere of employment remains a major issue. Under the 
General Equal Treatment Act, legal action cannot be taken against sexual harassment in 
cases concerning access to goods and services. Further, it has to be noted that the number 
of  sexual  harassment  cases  concerning  working  life  is  very  small.176  Despite  innovative 
case  law,  surveys  on  sexual  harassment  in  the  workplace  show  that  this  kind  of 
discrimination is still widespread.177 While victims may object to the treatment, very few 
reach out for external legal support, and many do not know about the internal complaint 
procedures. This is a particularly severe issue if the harassment is committed by a person 
with line management responsibilities. 

  Instruction to discriminate 

3.7.1  Explicit prohibition 

Instructions to discriminate are explicitly prohibited in German legislation. Section 3(5) of 
the General Equal Treatment Act states that an instruction to discriminate against a person 
on the grounds of (inter alia) sex/gender will be deemed to be prohibited discrimination 
(Benachteiligung),  especially  in  the  fields  of  employment  when  a  person  instructs  an 
employee to discriminate against another employee. 

3.7.2  Specific difficulties 

There is very little case law concerned with instructions to discriminate. In a 2014 decision 
it was confirmed that the provisions of a collective agreement can constitute a prohibited 
instruction to discriminate but denied any entitlement to compensation by insisting on the 
requirement of fault of the employer.178 

  Other forms of discrimination 

Assumed discrimination is covered by the law. Section 7(1) of the General Equal Treatment 
Act states explicitly that in the field of employment, the prohibition of discrimination will 
also  apply  where  the  person  committing  the  act  of  discrimination  only  assumes  the 
existence  of  any  of  the  grounds  covered  by  the  law.  There  is  no  comparable  provision 
concerning discrimination by association. However, the wording of the legal definition does 
not prevent the inclusion of discrimination by association. 

175  State Labour Court of Rhineland-Palatinate, judgment of 11 April 2019, 5 Sa 339/18, 

ECLI:DE:LAGRLP:2019:0411.5Sa339.18.00. 

176  However, courts repeatedly confirm that sexual harassment can justify dismissal without notice and other 

severe sanctions, e.g. Federal Labour Court, judgment of 20 May 2021, 2 AZR 596/20, 
ECLI:DE:BAG:2021:200521.U.2AZR596.20.0; State Labour Court of Rhineland-Palatinate, judgment of 25 
February 2021, 2 Sa 207/20, ECLI:DE:LAGRLP:2021:0225.2SA207.20.00; State Labour Court of Rhineland-
Palatinate, judgment of 18 October 2019, 1 Sa 76/19; State Labour Court of Rhineland-Palatinate, 
judgment of 18 November 2019, 3 Sa 316/18; State Labour Court of Hesse, judgment of 16 July 2019, 
15 Sa 1495/18; Labour Court Düsseldorf, judgment of 14 December 2018, 14 Ca 5613/18; State Labour 
Court Niedersachsen, judgment of 06 December 2013, 6 Sa 391/13.  

177  Schröttle, M., Meshkova, K., Lehmann, C. (2019) ‘Umgang mit sexueller Belästigung am Arbeitsplatz, 

Antidiskriminierungsstelle des Bundes, available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/umgang_mi
t_sexueller_belaestigung_am_arbeitsplatz.pdf?__blob=publicationFile&v=3; Sexuelle Belästigung am 
Arbeitsplatz (2015) Antidiskriminierungsstelle des Bundes available online: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Umfragen/handout_u
mfrage_sex_belaestigung_am_arbeitsplatz_personalverantw.pdf?__blob=publicationFile&v=4. 

178  State Administrative Court of Lower Saxony, judgment of 25 February 2014, 5 LA 204/13.  

37 

 
 
 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

Algorithmic discrimination is neither explicitly included nor excluded by the General Equal 
Treatment  Act.  There  is  an  ongoing  discussion  on  the  General  Equal  Treatment  Act’s 
relevance  and  algorithmic  discrimination  has  been  a  focus  of  the  Federal  Anti-
Discrimination Agency.179 One the one hand the Act is technology neutral, and there is no 
reason to assume that it should not be relevant if artificial intelligence (AI) is used within 
the  sphere  of  employment  or  goods  and  services.180  However,  there  are  several  issues 
with the impact of the Act in this context. Firstly, only decisions made on the basis of an 
algorithmic  process,  as  opposed  to  AI  processes  and  outputs,  are  justiciable.  Yet, 
algorithmic  classification  based  on  gender  or  gender-related  patterns  and  negative 
connotations  associated  with  it  can  already  produce  harm  prior  to  any  discriminatory 
decision or treatment.181 As such, past proposals for a digital non-discrimination law have 
been  criticised  as  they  failed  to  address  the  reproduction  of  algorithmic  biases  beyond 
discrimination.182 Whether biases that are an accidental feature of the data processing can 
be  addressed  under  the  scope  of  the  General  Equal  Treatment  Act  depends  on  the 
interpretation of indirect discrimination and its scope. Current national court approaches 
seem to struggle to address these disadvantages, unless one can identify specific labelling 
decisions that are directly affected by implicit bias. Moreover, there is an obvious problem 
with enforcement,183 due to the overall complexity of the matter and structural problems 
related to information imbalance.184 Indeed the proposed AI Act seems to do little in that 
respect. As such the proposed Directive on the platform (or ‘gig’) economy is instrumental. 
A  detailed  review  of  how  claims  related  to  algorithmic  discrimination  can  rely  on  the 
General Equal Treatment Act is expected for summer 2023.185 The Third Gender Equality 
Report186  concerned  with  the  digitalisation  of  the  economy  also  considers  the  potential 
impact of algorithmic discrimination. 

  Evaluation of implementation 

The 2006 General Equal Treatment Act is a formal transposition of the directives on the 
one  hand,  following  a  copy-and-paste  procedure  regarding  the  definition  of  central 
concepts.  As  such,  it  is  a  product  of  its  legislative  history,  with  strong  political  and 
academic opposition to any expansion of non-discrimination law, delayed implementation, 
and  last-minute  compromises.  Therefore,  there  are  significant  gaps  within  the 

179  Orwat, C. (2019), Diskriminierungsrisiken durch Verwendung von Algorithmen, Federal Anti-Discrimination 

Agency, available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Expertisen/studie_disk
riminierungsrisiken_durch_verwendung_von_algorithmen.pdf?__blob=publicationFile&v=3.  

180  Von Lewinsky, K. & de Barros Fritz, R. (2018), ‘Arbeitgeberhaftung nach dem AGG infolge des Einsatzes von 

Algorithmen bei Personalentscheidungen’ (Employer liability due to the use of algorithms in personnel 
decisions), Neue Zeitschrift für Arbeitsrecht: 620-624.  

181  German Women Lawyers’ Association (2020), ‘Stellungnahme zu dem Weißbuch der EU-Kommission “Zur 
Künstlichen Intelligenz – ein europäisches Konzept für Exzellenz und Vertrauen”’ (Statement on the EU 
Commission White Paper ‘On Artificial Intelligence – A European Concept for Excellence and Trust’), 
https://www.djb.de/verein/Kom-u-AS/ASDigi/st20-20/.  

182  See Fröhlich, W. and Spiecker genannt Döhmann, I. (2018), ‘Können Algorithmen diskriminieren?’ (Can 

algorithms discriminate?) Verfassungsblog (26 December 2018) available at: 
www.verfassungsblog.de/koennen-algorithmen-diskriminieren; Jaume-Palasí, L (2017), ‘Diskriminierung 
hängt nicht vom Medium ab’ (Discrimination does not depend on the medium) AlgorithmWatch, (3 July 
2017) available at: www.algorithmwatch.org/de/diskriminierung-haengt-nicht-vom-medium-ab. 
183  See Scheer, J. (2019), ‘Algorithmen und ihr Diskriminierungsrisiko. Eine erste Bestandsaufnahme’ 
(Algorithms and their Risk of Discrimination. A first inventory), published by the Berlin State anti-
discrimination body, p. 14, available at: https://www.berlin.de/sen/lads/ueber-uns/materialien/; Busch, C. 
(2018), Gutachten Algorithmic Accountability (Assessment of algorithmic accountability), pp. 48, 
https://www.abida.de/sites/default/files/ABIDA%20Gutachten%20Algorithmic%20Accountability.pdf. 

184  See Martini, M. (2017), ‘Algorithmen als Herausforderung für die Rechtsordnung’ (Algorithms as a challenge 

for the legal system), JuristenZeitung 21: 1017-1025.  

185  Spiecker gen. Döhmann, I. and V. Towfigh, E. (forthcoming 2023), 'Das Allgemeine 

Gleichbehandlungsgesetz und der Schutz vor Diskriminierung durch algorithmische Entscheidungssysteme' 
available at: 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/Rechtsgutachten/schut
z_vor_diskriminierung_durch_KI.html. 

186  Federal Government (2021), Third Gender Equality Report, Berlin, with further references. Documents are 

available at: https://www.gleichstellungsbericht.de/. 

38 

 
 
 
Country report – Gender equality – Germany – 2023 

implementation and national courts continue to struggle with the application and effective 
interpretation of the main concepts. There are many examples, such as the restriction of 
the  prohibition  of  sexual  harassment  to  the  area  of  employment;  the  restriction  of  the 
possible use of statistical data to prove indirect discrimination; the de facto requirement 
of  fault  in  labour  law  cases;  the  lack  of  an  explicit  prohibition  of  discrimination  by 
association; the failure to recognise indirect and intersectional discrimination. The General 
Equal Treatment Act also offers no effective protection against discrimination by colleagues 
and third parties (such as customers) at the workplace. 

 Remaining issues 

There are no remaining issues. 

39 

 
 
 
Country report – Gender equality – Germany – 2023 

4 

Equal  pay  and  equal  treatment  at  work  (Article 157  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54)187 

  General (legal) context 

The Second Gender Equality Report of the Federal Government188 focused on the gender 
pay  gap  and  its  causes.  The  experts  pointed  at  the  well-known  structural  factors  and 
employment  history  differences  between  women  and  men,  such  as  gender-specific 
segregation  of  the  labour  market,  gender-biased  work  assessment  procedures,  a  lower 
presence of women in managerial positions, interruptions in female employment due to 
care work, the high percentage of female employees working part-time. Moreover, women 
more commonly work in ‘mini-jobs’, which is a form of employment that is not subject to 
compulsory insurance, with obvious socio-economic consequences. In 2022, the legislator 
increased  the  maximum  income  within  this  employment  from  EUR 450  to  de  facto 
EUR 520. It is now calculated by reference to hours worked (10 weekly hours at the rate 
of the minimum wage).189 Gender-specific career choices (gender-based segregation) are 
increasing, rather than decreasing. The unequal distribution of care work is persistent. 190 
Although significantly more women are now employed, the total working time volume of 
women has not increased – more women share the same total working time, meaning that 
they work in ever smaller part-time jobs. The massive expansion of childcare has not yet 
had  a  significant  impact.  The  Third  Gender  Equality  Report191  focused  on  ‘Making 
digitization  gender-equitable’.  The  report  notices  a  smaller  gender  pay  gap  within  the 
somewhat diverse IT sector and digital industry. However, the gap significantly depends 
on the size of the undertaking with smaller businesses having larger pay gaps.192 

The constitutionally protected collective freedoms of the social partners can further hinder 
the State’s ability to ensure pay equality. In 2009, the Federal Labour Court decided that 
the  evaluation  of  work  and  the  establishment  of  pay  systems  are  crucial  parts  of  the 
autonomy of collective bargaining and that the state may not interfere with these decisions 
of the social partners even if the system of pay seems to be arbitrary or unjust.193 In 2011, 
the Court granted the social partners a wide margin of appreciation due to their autonomy 
in collective bargaining and thus rejected a thorough examination of (allegedly) indirect 
gender-discriminatory  provisions  of  a  particular  collective  agreement.194  The  Pay 

187  See on equal pay Burri, S. (2019), National Cases and Good Practices on Equal Pay, European network of 

legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/publications/thematic-reports. 
See also Foubert, P. (2017), The enforcement of the principle of equal pay for equal work or work of equal 
value: A legal analysis of the situation in the EU Member States, Iceland, Liechtenstein and Norway, 
European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4466-the-enforcement-of-the-principle-of-equal-pay-for-equal-
work-or-work-of-equal-value-pdf-840-kb. 
See on the issue of pay transparency: Veldman, A. (2017), Pay transparency in the EU A legal analysis of 
the situation in the EU Member States, Iceland, Liechtenstein and Norway, European network of legal 
experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4073-pay-transparency-in-the-eu-pdf-693-kb. 

188  Federal Government (2017), Second Gender Equality Report, Berlin. Documents are available at:  

www.bmfsfj.de/bmfsfj/service/publikationen/zweiter-gleichstellungsbericht-119796. The committee of 
experts consisted of Eva Kocher (chair), Thomas Beyer, Eva Blome, Holger Bonin, Ute Klammer, Uta Meier-
Gräwe, Helmut Rainer, Stephan Rixen, Christina Schildmann, Carsten Wippermann, Anne Wizorek, and 
Aysel Yollu-Tok.  

189  Gesetz zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn und zu Änderungen im Bereich der 
geringfügigen Beschäftigung (Act to increase the protection provided by the statutory minimum wage and 
to make changes in the field of marginal employment) of 28 June 2022, Official Journal (BGBl. I) 2022, No. 
22, page 969.  

190  See Federal Government (2017), Second Gender Equality Report, Berlin and Federal Government (2021), 

Third Gender Equality Report, Berlin, with further references. Documents are available at: 
www.bmfsfj.de/bmfsfj/service/publikationen/zweiter-gleichstellungsbericht-119796. 

191  Federal Government (2021), Third Gender Equality Report, Berlin, with further references; available at: 

https://www.gleichstellungsbericht.de/. 

192  Federal Government (2021),Third Gender Equality Report, 111. 
193  Federal Labour Court, judgment of 17 December 2009, 6 AZR 665/08. 
194  Federal Labour Court, judgment of 19 January 2011, 3 AZR 29/09. 

40 

 
 
 
 
Country report – Gender equality – Germany – 2023 

Transparency Act also recognises the specific role of collective bargaining. There seems to 
be  the  assumption  that  collective  bargaining  can  trump  centrally  imposed  equal  pay 
requirements, as they  are able to provide more nuanced  responses  considering specific 
sectors  that  may  also  represent  women’s  interests.  However,  there  is  little  evidence  to 
support  that  claim  within  the  context  of  labour  market  segregation,  persisting  gender 
stereotypes, and male-dominated social partners. While autonomy in collective bargaining 
does not do away with the requirement of Article 3 of the Constitution195 and most trade 
unions in Germany regard themselves as being bound by the principles of gender equality, 
including equal pay, and engage in their promotion, the case law above suggests a rather 
narrow scope of judicial scrutiny. 

4.1.1  Political and societal debate and pending legislative proposals 

There is always some political and societal debate about the gender pay gap, especially 
when  the  new  statistics  are  published,  but  in  these  debates,  the  main  concern  is  the 
question  of  the  ‘adjusted’  pay  gap  –  a  focus  that  hides  most  of  the  gender  inequality 
problem. The  Government and the  Bundestag  are proud that the  Pay  Transparency Act 
entered  into  force.  However,  the  first  evaluation  of  the  Pay  Transparency  Act  showed 
nearly  no  effects  of  the  new  legislation:  the  right  to  information  was  hardly  used  and 
companies neither voluntarily review their remuneration structures nor comply with their 
reporting obligations.196 

The authors  of the  Second Gender Equality Report  of the Federal  Government197 stated 
that there is need for continuous and institutionalised monitoring, given that the gender 
pay gap is the result of a complex interplay of different inequalities in the labour market. 
They  suggested  setting  up  a  permanent  Equal  Pay  Commission  at  the  Federal  Anti-
Discrimination Agency, whose role would be to develop certifications and to monitor the 
development  of  equal  pay.  They  further  suggested  that  in  public  communication,  the 
Federal  Statistical  Office  should  stop  using  methodologically  correct,  but  extremely 
misleading  terms,  such  as  ‘adjusted’  and  ‘unadjusted’  wage  gaps.  More  realistic  terms 
would be ‘causally still unexplained gap in gross hourly wage’ (instead of ‘adjusted wage 
gap’) and ‘real gap in gross hourly wage’ (instead of ‘unadjusted wage gap’). They further 
identified a ‘gender care gap’ illustrating structural inequalities between men and women, 
especially  in  the  way  society  (and  the  legal  framework)  organises  paid  work  (including 
paid care work) and unpaid care work. They recommend that the Federal Statistical Office 
takes  into  account  not  only  the  gender  pay  gap  but  the  gender  care  gap,  the  gender 
pension  gap  and  the  gender  overall  earnings  gap  in  its  annual  report  and  makes 
calculations as differentiated as possible. Recently, the Statistical Office has included an 
indicator  on ‘Gender gap labour market’  referring to the  monthly working time (Gender 
Hours Gap) and the Labour force participation of women and men (Gender Employment 
Gap).198 The gender pay gap 2022 is 18 % (adjusted 7 %), 37 % of that gap cannot be 
explained by reference to different labour participation and part-time work. Comparison 
to the previous year is nevertheless difficult, as the calculation method was changed. 199 
The gender gap in the labour market is 37 %.200 

195  Feldhoff, K. (2007), ‘Section 7’, in Rust, U. et al. (eds.) Allgemeines Gleichbehandlungsgesetz. Kommentar, 
Berlin, para. 107, and Schiek, D. (2010), ‘Introduction’, in Däubler, W. (ed.) Betriebsverfassungsgesetz. 
Kommentar, 12th ed., Frankfurt/Main, para. 390 et seq. The courts do not agree, e.g. Federal Labour Court, 
judgment of 25 February 2009, 4 AZR 40/08, does not even mention different payments for the female 
applicant and her male co-workers but consequently uses the male form when referring to the applicant, 
thus obstructing any understanding of the case.  

196  Federal Government (2019), Report on the implementation of the Pay Transparency Act with Comments by 

the Social Partners, https://www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-
wirksamkeit-des-gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern/137226.  

197  Federal Government (2017), Second Gender Equality Report, Berlin. Documents are available at: 

https://www.gleichstellungsbericht.de/.  

198  See www.destatis.de/DE/Themen/Arbeit/Verdienste/Verdienste-GenderPayGap/_inhalt.html.  
199  See www.destatis.de/DE/Presse/Pressemitteilungen/2023/01/PD23_036_621.html.  
200  See www.destatis.de/DE/Service/Statistik-Visualisiert/GenderGapSimulator/_inhalt.html.  

41 

 
 
 
 
 
Country report – Gender equality – Germany – 2023 

It  has  been  suggested  that  the  introduction  of  the  minimum  wage  was  instrumental  in 
reducing the gender pay gap.201 In 2022, the legislator increased the minimum wage to 
EUR 12 an hour.202 Section 9 of the Minimum Wage Act states that: 

‘the Minimum Wage Commission must decide on an adjustment of the level of the 
minimum wage by 30 June 2023 with effect from 1 January 2024. According to this, 
the Minimum Wage Commission has to decide every two years  on adjustments to 
the level of the minimum wage. As part of an overall assessment, the Minimum Wage 
Commission examines which level of the minimum wage is suitable to contribute to 
an  adequate  minimum  protection  of  employees,  to  enable  fair  and  functioning 
competitive  conditions  and  not  to  jeopardise  employment.  When  setting  the 
minimum wage, the Minimum Wage Commission is guided by the development  of 
collective bargaining agreements.’ 

  Equal pay 

4.2.1  Implementation in national law 

The  prohibition  of  pay  discrimination  as  expressed  in  Recast  Directive 2006/54/EC  is 
implemented in German law: Section 2(1)(2) of the General Equal Treatment Act, which 
prohibits any discrimination on the grounds of sex in relation to employment and working 
conditions, including pay, in particular in contracts between individuals and in collective 
agreements.  The  provision  only  protects  from  pay  discrimination  and  the  courts  have 
distinguished  this  from  a  general  entitlement  to  equal  pay  for  equal  work  and  work  of 
equal value.203 The principle of equal pay for men and women is also part of the gender 
equality principle in Article 3(2) and (3) of the German Constitution which binds the state 
as an employer as well as the parties to collective labour agreements.204 

The  unequal  treatment  of  workers  in  general  provisions,  especially  the  arbitrary 
establishment of groups of workers,205 is prohibited under the unwritten general principle 
of equal treatment in labour law.206 According to Section 75(1) of the Works Constitution 
Act, the employer and the works council are to respect the principles of law and equality 
and the prohibition of sex discrimination.207 Section 4(1) of the Part-Time and Fixed-Term 
Employment  Act  grants  equal  treatment  to  part-time  workers  compared  to  full-time 
workers as well as the application of the pro rata temporis principle to the remuneration208 
of part-time work. 

On 6 July 2017, the Pay Transparency Act entered into force.209 The Act contains an explicit 
prohibition  of  direct  and  indirect  pay  discrimination  on  the  grounds  of  sex/gender 
(including pregnancy and motherhood). It tries to provide a definition of the ‘same work’ 
and  ‘work  of  equal  value’  covering  the  kind  of  work,  training  requirements,  working 
conditions and the key requirements of the actual work in question. The prohibition of pay 

201  See www.destatis.de/DE/Presse/Pressemitteilungen/2016/03/PD16_097_621pdf.pdf?__blob=publicationFile 
202  Gesetz zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn und zu Änderungen im Bereich der 
geringfügigen Beschäftigung (Act to increase the protection provided by the statutory minimum wage and 
to make changes in the field of marginal employment) of 28 June 2022, Official Journal (BGBl. I) 2022, No. 
22, page 969.  

203  Federal Labour Court, judgment of 25 January 2012, 4 AZR 147/10; State Labour Court of Hamburg, 

judgment of 1 March 2011, 2 Sa 56/10.  

204  Federal Labour Court, judgment of 15 January 1955, 1 AZR 305/54.  
205  Federal Labour Court, judgment of 21 June 2000, 5 AZR 806/98; Federal Labour Court, judgment of 

17 November 1998, 1 AZR 147/98.  

206  See Hinrichs, O. in: Däubler, W. and Bertzbach, M. (eds.) (2008), Allgemeines Gleichbehandlungsgesetz. 

Handkommentar, Section 2 para. 198, 2nd ed., Baden-Baden.  

207  Including equal pay, see Berg, P. in: Däubler, W. (ed.) (2010), Betriebsverfassungsgesetz. Kommentar, 

Section 75 para. 46, 12th ed., Frankfurt a M.  

208  State Labour Court of Baden-Württemberg, judgment of 29 January 2016, 17 Sa 84/15: including time 

credits. 

209  Pay Transparency Act of 30 June 2017, Official Journal 2017, p. 2152, https://www.gesetze-im-

internet.de/entgtranspg/BJNR215210017.html.  

42 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

discrimination  is  repeated  under  the  heading  ‘pay  equality’.  Agreements  violating  the 
prohibition  of  pay  discrimination  on  the  grounds  of  sex/gender  are  invalid.  The  Act 
explicitly prohibits victimisation connected to the exercising of rights under this law. While 
the  first  evaluation  reports  of  the  Act  do  not  suggest  any  greater  success  in  terms  of 
securing information on pay, as only 2 % of employees use this information right,210 the 
Act has had significant impact on the courts case law related to pay. Indeed, the Federal 
Labour Court considered the Pay Transparency Act as implementing parts of the Recast 
Directive  that  were  not  fully  covered  by  the  General  Equal  Treatment  Act.211  The  Pay 
Transparency Act does not provide for further consequences in the event of a violation of 
the prohibition of pay discrimination on the grounds of sex/gender. The employee  must 
take legal action under the General Equal Treatment Act. 

4.2.2  Definition in national law 

The concept of pay is defined in legislation. Under Section 5(1) of the Pay Transparency 
Act, ‘pay’ covers all basic or minimum wages or salaries and all other remuneration in cash 
or in kind, directly or indirectly granted on the basis of an employment relationship. People 
in  employment  relationships  include  employees,  civil  servants,  judges,  the  military, 
trainees and employees working at home. The Federal Labour Court considers that the Act 
constitutes a necessary step for implementing Article 2(1)I Recast Directive 2006/54.212 

Before the Pay Transparency Act’s entry into force, the General Equal Treatment Act was 
interpreted  in  an  extensive  way  to  cover  all  benefits  granted  by  the  employer. 213  It 
therefore included salaries and all other contributions of a financial value, such as one-off 
payments,  premiums,  benefits  in  kind  or  paid  leave.  This  seemed  to  comply  with  the 
definition of Article 157(2) TFEU before clarification by the Pay Transparency Act. In 2017, 
the  Federal  Labour  Court  emphasised  that  survivor’s  pension  and  special  occupational 
pensions are elements of ‘pay’ under Article 157 TFEU.214 It has also been confirmed that 
this  can  include  payments  by  third  parties  that  can  be  influenced  by  the  employer,  for 
example via performance review (here: limited share acquisition rights).215 

‘Worker’  is  defined  too.  The  General  Equal  Treatment  Act  defines  the  scope  of 
‘Beschäftigte’, that can be translated as employees or workers. Section 7 Equal Treatment 
Act  protects  employees  (Beschäftigte)  from  discrimination  (disadvantage)  based  on  the 
protected  characteristics.  Section 6  Equal  Treatment  Act  defines  employees  within  the 
meaning  of  the  Act.  It  includes  (1)  Workers;  (2)  those  employed  for  their  vocational 
training, (3) persons who, because of their economic dependency, are to be regarded as 
persons similar to employees; these include those working from home and those treated 
as such. It also specifies that applicants for employment and persons whose employment 
relationship  have  ended  are  also  considered  employees  (Beschäftigte).  Section 6(3) 

210  See Federal Government (2019), Bericht der Bundesregierung zur Wirksamkeit des Gesetzes zur Förderung 

der Entgelttransparenz zwischen Frauen und Männern sowie zum Stand der Umsetzung des 
Entgeltgleichheitsgebots in Betrieben mit weniger als 200 Beschäftigten (Report of the Federal Government 
on the effectiveness of the Pay Transparency Act and on the status of implementation of the equal pay 
requirement in companies with fewer than 200 employees), 
https://www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-wirksamkeit-des-
gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern-137226. 

211  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19. 
212  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19. 
213  Established case law, e.g. Federal Labour Court, judgment of 11 December 2007, 3 AZR 249/06; State 

Labour Court of Rhineland-Paladine, judgment of 14 August 2014, 5 Sa 511/13.  

214  Federal Labour Court, judgment of 26 September 2017, 3 AZR 733/15.  
215  State Labour Court of Berlin-Brandenburg, judgment of 9 March 2021, 24 TaBV 481/20. In 1997, the 

parent company adopted a ‘Stock Incentive Plan’, which stipulates that employees of companies of the 
A-Group are to be granted limited share acquisition rights ( ‘restricted stock units’ (RSUs)) by the parent 
company on the basis of a written contract with the Group parent company, the ‘Global Restricted Stock 
Unit Award Agreement’. The Court decided that the claim of the works council pursuant to Section 13(2) 
and (3) EntgTranspG also includes information on remuneration components that are paid by third parties, 
but on the extent to which the employer influences through performance evaluations and the agreement of 
total remuneration targets. This included these so-called restricted stock units. 

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Country report – Gender equality – Germany – 2023 

clarifies  that  ‘as  far  as  the  conditions  for  access  to  gainful  employment  and  career 
advancement are concerned, the provisions of this section shall apply mutatis mutandis 
to  self-employed  persons  and  members  of  executive  bodies,  in  particular  managing 
directors and board members.’ 

Section 5(2)  of  the  Pay  Transparency  Act  defined  employees  (Beschäftigte)  within  the 
meaning  of  this  Act  as  (1)  Workers,  (2)  civil  servants  of  the  Confederation  and  other 
corporations, institutions and foundations under public law subject to federal supervision, 
(3) Federal Judges, (4) Soldiers, (5) those employed for their vocational training, and (6) 
those working from home and those treated as such. The Federal Labour Court made clear 
that  Section 5(2)  No. 1  has  to  be  interpreted  in  line  with  EU  law  and  thus  can  include 
persons similar to employees in individual cases.216 

4.2.3  Explicit implementation of Article 4 of Recast Directive 2006/54 

The  General  Equal  Treatment  Act  explicitly 
the  provisions  of 
Directive 2006/54/EC due to the date of its entry into force, but the Federal Government 
considered further implementation unnecessary. Section 8(2) explicitly states that ‘lower 
remuneration for the same work or work of equal value on the basis of a reason referred 
to in Section 1 shall not be justified by the fact that special protective provisions apply on 
account of a reason referred to in Section 1.’ 

implements 

The Pay Transparency Act has been viewed by the Federal Labour Court as implementing 
Article 4  Recast  Directive 2006/54.217  The  2017  Act  contains  an  explicit  prohibition  of 
direct and indirect pay discrimination on the grounds of sex/gender (including pregnancy 
and motherhood). Employers are obliged to design their remuneration systems in such a 
way that excludes any pay discrimination on the grounds of sex. 

However, this does not mean that discriminatory structures in collective bargaining and 
job classifications are tackled. Employers bound by collective agreements are privileged 
under the Pay Transparency Act.218 When a collective agreement applies, the employer is 
not  obliged  to  explain  the  criteria  and  procedures  of  their  wage-setting  but  can  simply 
refer  to  the  agreement  for  an  explanation  and  justification  despite  the  fact  that  overly 
complex and often still gender-discriminatory job classifications established by collective 
agreements  are  one  of  the  main  obstacles  to  equal  pay.  Indeed,  most  wages  and  job 
classification  systems  in  Germany  are  determined  by  collective  agreements  under  the 
Collective Bargaining Act (Tarifvertragsgesetz)219 and the gender pay gap can still be partly 
explained  by  indirectly  discriminatory  provisions  in  collective  agreements,220  including 
collective agreements with public services and social institutions that still contain gender-
discriminatory classification systems.221 

216  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19. 
217  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19. 
218  Critique by Markard, N. (2019), ‘Das Gebot der Entgeltgleichheit: Verfassungsrechtliche Perspektiven’ in 

JuristenZeitung No. 74(11), pp. 534-542.  

219  Collective Bargaining Act of 25 August 1969, Official Journal 1969, p. 1323, https://www.gesetze-im-

internet.de/tvg/BJNR700550949.html.  

220  See Kocher, E. (2007), ‘Gleichstellungspolitik und Individualansprüche’ (Equality policy and individual 

claims) Kritische Justiz, Baden-Baden: Nomos, pp. 22-34.  

221  See H. Pfarr (2004), ‘Entgeltgleichheit in kollektiven Entgeltsystemen’ (Equal pay in collective payment 
systems) in H. Oetker et al. (ed.) Festschrift 50 Jahre Bundesarbeitsgericht pp. 779 ff., Munich, and 
R. Winter (2012), ‘Section 1’ in W. Däubler (ed.) Tarifvertragsgesetz: mit Arbeitnehmer-Entsendegesetz. 
Kommentar para. 401, 3rd ed., Baden-Baden. The trade union Ver.di had used the overhaul of the general 
collective agreement for white-collar workers with the public services to check its wage groups in a process 
of gender mainstreaming to end the overrating of typical male work compared to typical female work – and 
failed; the website covering this process, http://entgeltgleichheit.verdi.de/, was shut down after 2012. 

44 

 
 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

4.2.4  Related case law 

German  courts  have  developed  sophisticated  differences  between  the  principle  of  equal 
pay  and  the  prohibition  of  pay  discrimination,  giving  broad  leeway  to  collective 
bargaining,222 refusing to review complicated work assessment procedures due to lack of 
criteria  and  displaying  gender  stereotypes.  Until  recently  legal  action  against  pay 
discrimination  has  only  been  successful  in  relation  to  pensions.  Specifically,  the  courts 
rejected that Article 157 TFEU or the General Equal Treatment Act provide for the general 
principle  of  ‘the  same  pay  for  the  same  work’  but  only  apply  in  cases  of  sex/gender 
discrimination.223 The difference in pay was not considered enough to shift the burden of 
proof. 

However, the 2017 Pay Transparency Act has significantly changed the approach. In 2021, 
the Federal Labour Court considered that the interpretation of the  Pay Transparency Act 
and the General Equal Treatment Act in conforming with EU law meant that the female 
claimant alleging pay discrimination needs to demonstrate only that she produces equal 
work or work of equal value and a difference in pay between her and the median of the 
male peer group.224 This was deemed sufficient to ‘establish facts from which it may be 
presumed that there has been discrimination’ (Section 22 General Equal Treatment Act). 
Accordingly, the burden of proof shifts and it is then up to the employer to demonstrate 
that the difference in pay is not based on the employee’s sex or gender. The lower court 
had required additional facts that suggest the difference in pay occurred because of the 
claimant’s sex.225 In February 2023 the Court then confirmed that the right to equal pay 
stands  irrespectively  of  different  negotiation  tactics.  In  particular,  the  BAG  rejected 
references to the negotiation tactics (i.e. the male employees requesting a higher pay that 
was granted) and the fact that the male  employee followed a higher-salaried employee 
who previously occupied the position as explanations for pay difference once the burden 
of proof had shifted under Section 22 General Equal Treatment Act.226 

This is a significant development with potential impact for the future. Indeed a 2019 study 
on male-female ex ante wage expectations227 found a significant and large gender gap in 
wage expectations closely resembling the actual gender pay gap. Their analysis found that 
sorting and negotiation styles affect the gender gap in wage expectations much more than 
prospective  child-related  labour  force  interruptions.  This  study  indicates  the  important 
influence of gender stereotyping and shows how the gender pay gap is anticipated and to 
some extent primed before individuals enter the labour market. 

Much of the past case law justifying pay differences should now require a re-examination. 
Indeed,  past  case  law  has  routinely  made  reference  to  negotiating  skills,  contractual 
freedom,  reduced  seniority  and  shorter  employment  periods  due  to  maternity  and 
childcare  periods  to  explain  pay  differences  irrespective  of  sex  discrimination.228  Apart 
from rejecting negotiations and pay of previous employees as possible justification, it more 
broadly removes the role of motives, that is often prevalent within German case law. For 
example,  in  a  previous  case,  the  difference  in  pay  between  the  claimant  and  the 

222  There is only one judgment (Federal Labour Court, judgment of 20 August 2002, 9 AZR 353/01) in favour 
of a female applicant declaring regulations of a collective agreement to be unconstitutional, but as the 
applicant lost her vacation benefits due to her maternity leave taken before birth, this might be seen rather 
as a decision on maternity protection, although one involving equal pay.  

223  E.g. Federal Administrative Court, judgment of 9 April 2013, 2 C 5/12; Federal Labour Court, judgment of 
25 January 2012, 4 AZR 147/10; State Labour Court of Rhineland-Palatinate, judgment of 11 October 
2018, 5 Sa 455/15; State Labour Court of Baden-Württemberg, judgment of 21 October 2013, 1 Sa 7/13; 
Labour Court of Berlin, judgment of 1 February 2017, 56 Ca 5356/15.  

224  Federal Labour Court, judgment of 21 January 2021, 8 AZR 488/19, 

ECLI:DE:BAG:2021:210121.U.8AZR488.19.0. 

225  State Labour Court of Lower Saxony, judgment of 1 August 2019, 5 Sa 196/19. 
226  Federal Labour Court (BAG), judgment of 16 February 2023, case No. 8 AZR 450/21. 
227  Kiessling, L. et al. (2019), Gender Differences in Wage Expectations: Sorting, Children, and Negotiation 

Styles, IZA: Institute of Labour Economics, http://ftp.iza.org/dp12522.pdf. 

228  Labour Court of Berlin, judgment of 1 February 2017, 56 Ca 5356/15. 

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Country report – Gender equality – Germany – 2023 

comparator was not deemed to be relevant because the comparator’s higher pay was a 
result  of  a  court  settlement,  which  was  considered  as  evidence  that  there  was  no 
sex/gender discrimination as the higher salary for the male colleague was not motivated 
by his sex/gender.229 A 2014 decision concerned a newly introduced remuneration system 
that disadvantaged women significantly (84 % of the male production employees, but only 
28 % of the female production employees, fulfilled the requirements of the advantageous 
pay level 03 or higher). While the question of pay discrimination ultimately should have 
depended  on  the  value  of  the  work,  the  court  rejected  pay  discrimination  because  the 
defendant employer had explained in detail how, in a longer process with external experts, 
the various pay levels were differentiated on the basis of specific activities and work tasks 
in  the  manufacturing  process  without  any  regard  to  the  sex/gender  of  the  employees 
involved.230  Thus,  it  focused  on  the  question  whether  gender  was  the  motive  for  the 
differentiation. 

Indirect  pay  discrimination  cases  related  to  redundancy  or  pensions  have  been  more 
successful in the past because they are based on criteria that can be objectively assessed 
as creating a disadvantage  rather than internal  decision-making processes.  The Federal 
Constitutional  Court  and  the  Federal  Administrative  Court  decided  that  statutory 
reductions of retirement pensions due to former part-time work violated the constitutional 
as well as European Union law prohibiting sex and pay discrimination.231 The Hessen High 
Labour  Court  found  that  a  scheme  for  redundancy  pay,  which  added  a  supplement  for 
dependent children if they were included in the tax card, disadvantaged women, because 
the  tax  categories  more  often  chosen  by  women  did  not  allow  for  the  inclusion  of 
children.232 Another case concerned the calculation of an occupational pension for a female 
part-time employee employed by a trade union. The Federal Labour Court ruled that the 
occupational pension must be calculated in such a way that it is granted in the amount 
corresponding to the exact proportion of the female part-time employee’s working time to 
the  working  time  of  a  comparable  full-time  employee.233  Otherwise  there  would  be 
discrimination against part-time workers and thus indirect discrimination against women. 
A third case concerned a statutory state provision for occupational pension schemes for 
employees of the German state of Hamburg, which provided that the lower pension would 
be suspended if an employee was entitled to both a survivor’s pension and a retirement 
pension under the statutory provisions of the state of Hamburg. The Federal Labour Court 
decided that it could not be ruled out that more female than male former employees of 
Hamburg  would  be  adversely  affected  by  this  regulation  and  called  on  the  state  labour 
court  to  carefully  examine  whether  there  was  indirect  discrimination  on  the  grounds  of 
sex/gender.234  The  Federal  Labour  Court  referred  to  various  CJEU  rulings,  among  them 
the  cases  C-443/15  Parris,  C-427/11  Kenny,  C-385/11  Elbal  Moreno,  C-285/02  Elsner-
Lakeberg,  C-379/99  Menauer,  C-400/93  Dansk  Industri,  C-200/91  Coloroll,  C-43/75 
Defrenne.235  

229  State Labour Court of Baden-Württemberg, judgment of 21 October 2013, 1 Sa 7/13.  
230  State Labour Court of Rhineland-Palatinate, judgment of 11 October 2018, 5 Sa 455/15.  
231  Federal Constitutional Court, judgment of 18 June 2008, 2 BvL 6/07, and Federal Administrative Court, 

judgment of 12 December 2012, 2 B 90/11.  

232  High Labour Court of Hessen (LAG) judgment of 28 October 2020, 18 Sa 22/20. 
233  Federal Labour Court, judgment of 14 July 2015, 3 AZR 594/13.  
234  Federal Labour Court, judgment of 26 September 2017, 3 AZR 733/15.  
235  Judgment of the Court (First Chamber) of 24 November 2016, David L. Parris v. Trinity College Dublin and 
Others, Case C-443/15, ECLI:EU:C:2016:897; Judgment of the Court (Third Chamber), 28 February 2013, 
Margaret Kenny and Others v. Minister for Justice, Equality and Law Reform and Others, Case C-427/11, 
ECLI:EU:C:2013:122; Judgment of the Court (Eighth Chamber), 22 November 2012, Isabel Elbal Moreno v. 
Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS), 
Case C-385/11, ECLI:EU:C:2012:746; Judgment of the Court (First Chamber) of 27 May 2004, Edeltraud 
Elsner-Lakeberg v. Land Nordrhein-Westfalen, Case C-285/02, ECLI:EU:C:2004:320; Judgment of the 
Court (Sixth Chamber) of 9 October 2001, Pensionskasse für die Angestellten der Barmer Ersatzkasse VVaG 
v. Hans Menauer, Case C-379/99, ECLI:EU:C:2001:527; Judgment of the Court of 31 May 1995, 
Specialarbejderforbundet i Danmark v. Dansk Industri, formerly Industriens Arbejdsgivere, acting for Royal 
Copenhagen A/S, Case C-400/93, ECLI:EU:C:1995:155; Judgment of the Court of 28 September 1994, 
Coloroll Pension Trustees Ltd v. James Richard Russell, Daniel Mangham, Gerald Robert Parker, Robert 
Sharp, Joan Fuller, Judith Ann Broughton and Coloroll Group plc, Case C-200/91, ECLI:EU:C:1994:348; 

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Country report – Gender equality – Germany – 2023 

In August 2019, the State Administrative Court of Bavaria236 decided that the calculation 
of pensions for retired civil servants infringes Article 157 TFEU in that taking into account 
statistical data on the different average life expectancies of men and women results in a 
lower pension component for male civil servants. The court explained that the calculation 
in  question  violated  neither  the  statutory  regulations  on  pensions  nor  constitutional 
requirements but was incompatible with EU law, and it dealt extensively with the case law 
of the CJEU. 

4.2.5  Permissibility of pay differences 

The  General  Equal  Treatment  Act  does  not  cover  justifications  for  pay  differences. 
Concerning  the  possibility  of  indirect  discrimination,  a  broad  range  of  justifications  is 
accepted by the courts, especially job classification systems in collective agreements. 

Under Section 3(2) of the Pay Transparency Act, direct pay discrimination on the grounds 
of  sex,  including  pregnancy  and  maternity,  cannot  be  justified.  Under  Section 3(3) 
concerning indirect pay discrimination on the grounds of sex, criteria relating to the labour 
market, performance and work output may justify different pay, provided that the principle 
of  proportionality  has  been  observed.  This  list  seems  to  conflate  the  question  of  equal 
work / equal  value  work  with  the  objective  justification.  Labour  market  related 
justifications  have  been  accepted  by  the  Federal  Labour  Court  in  the  past.237  Such 
justifications  could  for  example  relate  to  the  lack  of  potential  recruits  or  oversupply  of 
outsourced services. The statutory justifications do not differentiate between the different 
components of the remuneration.238 

4.2.6  Requirement for comparators 

A comparator is required in German law as regards equal pay. Following the wording of 
Section 3(1) of the General Equal Treatment Act, the claimant in an equal pay case needs 
to  point  to  another  person  who  is,  has  been  or  would  be  treated  more  favourably  in  a 
comparable situation, i.e. to an actual, historical or hypothetical comparator. 
The role of the comparator has gained new relevance in the aftermath of a 2021 decision 
on the shift of burden of proof. The Federal Labour Court considered a direct comparison 
to be sufficient to shift the burden of proof.239 However, job classification systems agreed 
in  collective  agreements  still  remain  relevant.  Under  Sections  10  to  16  of  the  Pay 
Transparency Act, employees (and civil servants, judges and the military) are entitled to 
obtain information on the gross remuneration of their fellow employees doing the same 
work  or  work  of  equal  value  and  up  to  two  remuneration  components.  The  employee 
exercising this right has to identify the comparable same work or work of equal value and 
the comparison group of employees of the opposite sex has to contain at least six persons. 
Unfortunately, the right to obtain such information is rarely exercised.240 

Judgment of the Court of 8 April 1976, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne 
Sabena, Case C-43/75, ECLI:EU:C:1976:56.  

236  State Administrative Court of Bavaria, judgment of 14 August 2019, 14 BV 18.671. 
237  Federal Labour Court, judgment of 8 June 2005, 4 AZR 412/04. 
238  See German Women Lawyers’ Association, https://www.djb.de/verein/Kom-u-AS/K1/st17-05/.  
239  Federal Labour Court, judgment of 21 January 2021, 8 AZR 488/19, 

ECLI:DE:BAG:2021:210121.U.8AZR488.19.0. 

240  Federal Government (2019), Report on the implementation of the Pay Transparency Act with Comments by 

the Social Partners, https://www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-
wirksamkeit-des-gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern/137226.  

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4.2.7  Existence of parameters for establishing the equal value of the work performed 

For a definition of ‘work of equal value’, the Federal Labour Court, in its rare decisions on 
the  topic,  focused  on  the  requirements  for  work  performance  such  as  the  necessary 
previous  knowledge,241  skills  and  abilities,  the  variety  of  professional  duties242  and 
educational  qualifications.243  The  practice  of  the  social  partners  and  generally  accepted 
standards  may  contribute  to  these  criteria,  but  the  Federal  Labour  Court  deplored  the 
fundamental lack of objective criteria.244 In its judgments, the Court demonstrated its own 
difficulties with the non-discriminatory definition of equal pay for work of equal value.245 

Under  Section 4(2)  of  the  Pay  Transparency  Act,  female  and  male  employees  are 
performing  work  of  equal  value  when,  on  the  basis  of  a  set  of  factors,  they  can  be 
considered to be in a comparable situation. These factors include, the nature of work, the 
training requirements, and the working conditions. Only the actual requirements that are 
essential  to  the  relevant  activity  are  to  be  taken  into  consideration,  independent  of  the 
employees performing the activity and their performance. Different groups of employees 
covered  by  the  law  (employees,  judges,  the  military,  trainees,  etc.)  are  never  in  a 
comparable situation. 

4.2.8  Other relevant rules or policies 

No. 

4.2.9  Job evaluation and classification systems 

In 2011, the Government offered Logib-D as a management tool to help employers identify 
whether there was a pay gap between their male and female employees.246 There were 
strong indications that another tool (called eg-check)247 was better suited to detect pay 
discrimination on the grounds of sex/gender and to design pay structures and evaluation 
systems free of sex/gender discrimination. The Logib-D tool was designed to detect only 
the  ‘adjusted’  wage  gap,  ignoring  structural  and  indirect  discrimination  of  women  in 
working life. In 2019, the Federal Ministry for Family, Senior Citizens, Women and Youth 
presented  a  newly  developed  tool,  the  EVA  list  for  the  evaluation  of  job  assessment 
procedures  and  sample  analyses.248  The  EVA  list  is  based  on  the  realisation  that 
discriminatory  job  evaluations  in  the  form  of  devaluations  of  women-dominated  work 
embedded  in  the  procedures  of  job  evaluation,  in  collective  agreements  or  company 
agreements,  are  one  of  the  main  reasons  for  the  gender  pay  gap.249  The  EVA  list  is  a 
testing instrument for uncovering discrimination in written regulations on job evaluation, 
based  on  European  and  German  case  law  and  developed  on  the  basis  of  current  legal 
literature and instruments such as eg-check.250 

241  Federal Labour Court, judgment of 26 January 2005, 4 AZR 171/03.  
242  Federal Labour Court, judgment of 23 August 1995, 5 AZR 942/93.  
243  Federal Labour Court, judgment of 10 December 1997, 4 AZR 264/96.  
244  See Federal Labour Court, judgment of 23 August 1995, 5 AZR 942/93.  
245  For example, Federal Labour Court, judgment of 26 January 2005, 4 AZR 171/03 – this ruling is highly 

questionable concerning its ideas of the burden of proof and of blanket justifications for the devaluation of 
mostly ‘female’ work, and Federal Labour Court, judgment of 19 April 2012, 6 AZR 578/10, on the (alleged) 
incomparability of (female) secretarial services and (male) technical services within the armed forces.  

246  See https://www.bmfsfj.de/bmfsfj/service/publikationen/logib-d/82318.  
247  See https://www.eg-check.de/eg-check/DE/Weichenseite/weiche_node.html.  
248  See https://www.bmfsfj.de/bmfsfj/service/publikationen/der-entgeltgleichheit-einen-schritt-naeher/80406.  
249  See https://www.bmfsfj.de/blob/93494/e17b577ac517a8bfba186fdc99974a3e/der-entgeltgleichheit-einen-

schritt-naeher-die-eva-liste-beispiele-data.pdf.  

250  See https://www.bmfsfj.de/blob/93494/e17b577ac517a8bfba186fdc99974a3e/der-entgeltgleichheit-einen-

schritt-naeher-die-eva-liste-beispiele-data.pdf. 

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Country report – Gender equality – Germany – 2023 

4.2.10 Wage transparency251 

The  Pay Transparency  Act  provides an  individual right to  obtain information and  covers 
pay audits and reporting duties on equal pay. Unfortunately, reporting duties are restricted 
to companies with more than 500 employees and there are no effective sanctions in the 
case  of  non-compliance.  Pay  audits  are  not  mandatory  and  the  right  to  information  is 
restricted  to  companies  with  more  than  200  employees,  although  most  women  work  in 
smaller enterprises. The first major case of pay discrimination reached the court (of third 
instance) after the adoption of the Pay Transparency Act was decided in June 2020. The 
case was lost in the first instance with amazing reasoning based on the nature of women252 
and  in  the  second  instance  because  the  State  Labour  Court  of  Berlin  and  Brandenburg 
stated that the claimant could not prove that the lower remuneration (in comparison to 12 
male colleagues) was based upon sex discrimination and no other reasons.253 Moreover, 
the State Labour Court rejected the claimant’s right to information under Section 10 of the 
Pay Transparency Act with the argument that the claimant as a freelancer was not covered 
by the personal scope of application of the Act. In 2020, the Federal Labour Court clarified 
various  aspects  of  the  Pay  Transparency  Act.  Specifically,  it  highlighted  the  need  for 
interpretation  of  the  Act  in  conformity  with  EU  law  and  the  requirement  for  proper 
implementation  of  Article 4  Recast  Directive 2006/54/EC  regarding  equal  pay  for  equal 
work and work of equal value. As such, the Court considered the General Equal Treatment 
Act as insufficient. Accordingly, the meaning of employee had to be interpreted widely and 
had to correspond to the personal scope of the General Equal Treatment Act and the EU 
equality directives and include workers in employment-like circumstances. The claimant 
was thus entitled to  receive information regarding the average gross income as well as 
specific components and criteria for the determination of pay.254 

Works councils are entitled to have access to information about the wages of all employees 
in a company in detail under the Works Constitution Act (Betriebsverfassungsgesetz).255 
The Federal Labour Court confirmed this statutory entitlement and clarified that it was not 
restricted  to  anonymised  lists  and  the  works  council  is  not  required  to  demonstrate  a 
‘specific’ need for a non-anonymised gross payroll if the employer maintains one.256 The 
same  goes  for  the  representation  of  freelancers  working  for  public  broadcasters. 257 
Moreover, the  employer is obliged to  report on the state of affairs within the company, 
and this includes the topic of gender equality. If the employer is found to have committed 
grave violations of the prohibition on discrimination, works councils and trade unions can 
seek a court order obliging them to stop. 

251  See Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL to strengthen the 
application of the principle of equal pay for equal work or work of equal value between men and women 
through pay transparency and enforcement mechanisms, COM/2021/93 final. 

252  Labour Court of Berlin, judgment of 1 February 2017, 56 Ca 5356/15. During the public hearing, the judge 

explained that higher remuneration would mainly depend upon negotiating skills, supposedly more 
pronounced in men, and contractual freedom and that maternity and childcare periods would often lead to 
shorter periods of employment of women, less seniority and thus, lower wages without any discrimination 
involved. 

253  State Labour Court of Berlin and Brandenburg, judgment of 5 February 2019, 16 Sa 983/18.  
254  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19. 
255  Works Constitution Act of 25 September 2001, Official Journal 2001, p. 2518, https://www.gesetze-im-

internet.de/englisch_betrvg/index.html (English version).  
256  Federal Labour Court, judgment of 7 May 2019, 1 ABR 53/17.  
257  State Administrative Court of Berlin and Brandenburg, judgment of 19 December 2019, OVG 62 PV 7.19.  

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Country report – Gender equality – Germany – 2023 

4.2.11 Implementation of the transparency measures set out by European Commission’s 
Recommendation  of  7  March  2014  on  strengthening  the  principle  of  equal  pay 
between men and women 

On  6 July  2017,  the  Pay  Transparency  Act  (Entgelttransparenzgesetz)  entered  into 
force.258  Generally,  it  covers  an  individual  right  to  obtain  information  on  the  gross 
remuneration for equal work or work of equal value as well as pay audits and reporting 
duties on equal pay. Unfortunately, reporting duties are restricted to companies with more 
than 500 employees and there are no effective sanctions in the case of non-compliance. 
Pay audits are not mandatory.259 The right to information is restricted to companies with 
more than 200 employees, although the majority of women work in smaller enterprises. 
The Pay Transparency Act does not break with the understanding that there is no principle 
of  equal  pay  for  equivalent  work  but  only  a  prohibition  of  pay  discrimination.  It  also 
privileges  remuneration  systems  under  collective  agreements  which  constitutes  a  real 
obstacle  to  the  analysis  and  removal  of  structural  pay  discrimination.  Moreover, 
transparency is a condition and is no substitute for anti-discrimination law enforcement: 
without collective or class action, more rights for works councils and binding obligations, 
the principle of equal pay will not be strengthened by isolated transparency measures.260 

While  there  was  serious  doubt  that  pay  transparency  will  have  any  meaningful  impact, 
especially since the rights to information are rarely used, the Act did have an impact on 
courts’  approach  to  establishing  a  prima  facie  case  of  pay  discrimination  and  a  shift  of 
burden of proof. This was demonstrated in a 2021 decision of the Federal Labour Court. 
The  lower  court  had  held  that  the  information  pursuant  to  Section 11  of  the  Pay 
Transparency  Act,  even  when  confirming  large  differences  in  remuneration  between  a 
female  claimant  and  the  median  of  the  male  peer  group,  is  not  an  indication  of 
discrimination  within  the  meaning  of  Section 22  of  the  General  Equal  Treatment  Act.261 
The reason was that the median of the remuneration of male colleagues (as defined by 
the Pay Transparency Act) was not conclusive in the opinion of the courts, which miss the 
point  that  the  employer  can  easily  contradict  an  inconclusive  median  –  the  shift  of  the 
burden of proof is not the end of the court proceedings. The Federal Labour Court rejected 
these finding in line with its previous judgment that the Pay Transparency Act requires an 
EU-conforming interpretation. With reference to the need to consider EU law and the CJEU 
case law on equal pay (Kenny,262 Brunnhofer,263 and Enderby264) the Court made explicit 
that according to EU law the claimant was already a prima facie victim of discrimination if 
she received unequal pay while performing equal work or work of equal value.265 As such, 
the burden of proof also has to shift under Section 22 of the General Equal Treatment Act. 
Subsequent case law also increased the requirements for the justification. However, while 
the Federal Labour Court has now rejected negotiation strategies as insufficient to justify 
different pay,266 other factors deemed relevant in the past, such as seniority or different 
contractual arrangements (freelancers and permanent employees),267 may still matter. 

258  Pay Transparency Act of 30 June 2017, Official Journal 2017, p. 2152, https://www.gesetze-im-

internet.de/entgtranspg/BJNR215210017.html.  

259  Pay audits are voluntary operational audit procedures for companies with at least 500 employees, through 
which they may regularly review their remuneration regulations and the various remuneration components 
paid as well as their application for compliance with the equal pay requirement within the meaning of the 
Pay Transparency Act. 

260  See German Women Lawyers’ Association, https://www.djb.de/verein/Kom-u-AS/K1/st17-05/ and 

https://www.djb.de/verein/Kom-u-AS/K1/pm18-11/.  

261  State Labour Court of Lower Saxony, judgment of 1 August 2019, 5 Sa 196/19.  
262  CJEU, Case C-427/11, Kenny and Others, judgment of 28 February 2013, EU:C:2013:122. 
263  CJEU, Case C-381/99, Brunnhofer, judgment of 26 June 2001, EU:C:2001:358. 
264  CJEU, Case C-127/92, Enderby v Frenchay Health Authority and Secretary of State for Health, judgment of 

27 October 1993, EU:C:1993:859. 

265  Federal Labour Court, judgment of 21 January 2021, 8 AZR 488/19, 

ECLI:DE:BAG:2021:210121.U.8AZR488.19.0. 

266  Federal Labour Court, judgment of 16 February 2023, 8 AZR 450/21. 
267  Labour Court of Berlin, judgment of 1 February 2017, 56 Ca 5356/15; State Labour Court of Berlin and 

Brandenburg, judgment of 5 February 2019, 16 Sa 983/18. 

50 

 
 
 
 
Country report – Gender equality – Germany – 2023 

The first evaluation of the effects of the Pay Transparency Act after its entry into force was 
published in 2019 and  shows that the majority of  employers have not yet explored the 
new regulations in depth, let alone applied the rules, evaluated their systems or changed 
structures.268 Some employees feel happier due to the existence of the law, but they do 
not exercise their rights, and many employees are still not aware of them. However, there 
are also no direct sanctions for infringements or enforcement mechanisms, such as class 
action, although the state has a constitutional obligation to fight pay discrimination on the 
grounds of sex/gender.269 

4.2.12 Other measures, tools or procedures 

Since 2008, Germany ‘celebrates’ Equal Pay Day each year.270 Initiated by Business and 
Professional Women Germany, the event takes place annually in March. Every year, a key 
aspect of the gender pay gap is highlighted for discussion. 
With the ‘cliché-free’ initiative and the nationwide Girls’ Day (and, less successful, Boys’ 
Day) campaign, the Federal Government is promoting gender-equitable career choices and 
vocational counselling.271 

In  2009,  the  Government  published  guidelines  on  the  implementation  of  equal  pay  for 
work of equal value.272 This was followed in 2017, with an Guidelines on the Act to Promote 
Pay Transparency.273 In 2019 the Report of the Federal Government on the effectiveness 
of the Act to Promote Pay Transparency between Women and Men was published.274 In 
2021 a corporate programme for more equal pay was introduced. It supposed to support 
companies  on  their  way  to  more  equal  pay  and  more  pay  transparency.  Within  that 
context,  the  Federal  Ministry  of  Women's  Affairs  honoured  three  companies  that  are 
particularly committed to equal pay, in March 2022 and April 2023.275 

  Access to work, working conditions and dismissal 

4.3.1  Definition of the scope (Article 14(1) of Recast Directive 2006/54) 

The material scope of application of the General Equal Treatment Act under Section 2(1) 
Nos. 1-4 is almost identical to the scope of Article 14(1)(a)-(d) of Directive 2006/54/EC. 
However, Section 2(4) General Equal Treatment Act states that ‘the provisions on general 
and  special  protection  against  dismissal  are  exclusively  applicable  in  case  of  dismissal’. 
Moreover,  Section 2(2)  The  Company  Pensions  Act  (Betriebsrentengesetz)  applies  to 
company pension schemes. The exclusion of the dismissal from the scope of the Act has 
been deemed controversial. The Federal Labour Court does consider the Act to be relevant 

268  See Federal Government (2019), Bericht der Bundesregierung zur Wirksamkeit des Gesetzes zur Förderung 

der Entgelttransparenz zwischen Frauen und Männern sowie zum Stand der Umsetzung des 
Entgeltgleichheitsgebots in Betrieben mit weniger als 200 Beschäftigten (Report of the Federal Government 
on the effectiveness of the Pay Transparency Act and on the status of implementation of the equal pay 
requirement in companies with fewer than 200 employees), 
https://www.bmfsfj.de/blob/137224/79c7431772c314367059abc8a3242a55/bericht-der-br-foerderung-
entgelttransparenz-data.pdf. 

269  See Markard, N. (2019), ‘Das Gebot der Entgeltgleichheit: Verfassungsrechtliche Perspektiven’ in 

JuristenZeitung No. 74(11), pp. 534-542.  
270  See https://www.equalpayday.de/startseite/.  
271  See https://www.bmfsfj.de/bmfsfj/themen/gleichstellung/frauen-und-arbeitswelt/klischeefrei-und-girls-

day/initiativen-zur-berufswahl-von-maedchen--klischeefrei-und-girls-day/80404.  

272  See https://www.bmfsfj.de/bmfsfj/service/publikationen/fair-p-l-ay---entgeltgleichheit-fuer-frauen-und-

maenner/80416.  

273  See: www.bmfsfj.de/bmfsfj/service/publikationen/das-entgelttransparenzgesetz-informationen-zum-

gesetz-zur-foerderung-der-entgelttransparenz-117324.  

274  See: www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-wirksamkeit-des-

gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern-137226.  

275  See: www.entgeltgleichheit-fördern.de/german-equal-pay-award-2023  

and www.bmfsfj.de/bmfsfj/themen/gleichstellung/frauen-und-
arbeitswelt/lohngerechtigkeit/entgelttransparenzgesetz/-entgeltgleichheit-foerdern-unternehmen-beraten-
begleiten-staerken--164578.  

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Country report – Gender equality – Germany – 2023 

within the context of dismissal276 and has also recognised the possibility for compensation 
under the General Equal Treatment Act in case of a discriminatory dismissal.277 Scholars 
have also suggested that an EU conform interpretation is possible. However, the different 
structure  of  the  protection  against  dismissal,  the  general  need  for  transparency  and 
protection against the dismantling of rights may prevent such a conclusion.278 

In  July  2016,  the  CJEU  decided  that  a  situation  in  which  a  person  who  in  making  an 
application for a post does not seek to obtain that post but seeks only the formal status of 
applicant with the sole purpose of seeking compensation does not fall within the definition 
of  ‘access  to  employment,  to  self-employment  or  to  occupation’,  within  the  meaning  of 
Article 14(1)  of  the  Recast  Directive 2006/54,  and  such  action  may,  if  the  requisite 
conditions under EU law are met, be considered to be an abuse of rights.279 This confirmed 
the  German  approach  which  is  partly  dominated  by  fear  of  abuse  of  non-discrimination 
law. Accordingly, a non-serious applicant is not considered to fall within the scope of the 
General Equal Treatment Act.280 

4.3.2  Implementation of the exception on occupational activities (Article 14(2) of Recast 

Directive 2006/54) 

The exception on occupational activities has been implemented in German law. Section 8 
of the General Equal Treatment Act is a direct implementation of Article 14(2) of Recast 
Directive 2006/54 with the sole difference that the exception refers to all grounds and not 
to  sex  only.  There  are  no  official  assessments  available  on  this  topic.  The  courts  have 
decided that (female) sex/gender may constitute a genuine and determining occupational 
requirement for equal opportunity commissioners281 and official guardians282 but not for a 
gym teacher.283 

4.3.3  Protection  against  the  non-hiring,  non-renewal  of  a  fixed-term  contract,  non-
continuation  of  a  contract  and  dismissal  of  women  connected  to  their  state  of 
pregnancy and/or maternity 

There  is  effective  protection  against  dismissal  in  the  legal  framework  of  maternity 
protection and parental leave (see below) but the effectiveness of protection against non-
hiring, non-renewal of a fixed-term contract or non-continuation of a contract is more than 
questionable. As long as the Federal Anti-Discrimination Agency simply advises female job 
applicants not to answer or to lie in an application interview to the question of a possible 
desire to have children,284 it can be assumed that there is a larger problem. The agency is 
obviously  aware  of  widespread  discrimination  against  young  female  applicants  or 
employees, but these cases are neither settled nor brought to court. The existing case law 
confirms  with  reference  to  CJEU  case  law  that  pregnant  applicants  can  lie  about  their 
pregnancy.285 Nevertheless, the issue is still litigated today.286 

276  Federal Labour Court, judgment of 02 June 2022, 8 AZR 191/21 (concerned with disability); judgment of 22 

October 2009, 8 AZR 642/08. 

277  Federal Labour Court, judgment of 19 December 2013, 6 AZR 190/12 (concerned with disability).  
278  Däubler (2022), Section 2, in Däubler, W. (ed.) Kommentar Allgemeines Gleichbehandlungsgesetz, 5th 

Edition, Nomos, Baden-Baden, recital 295.  

279  CJEU decision of 28 July 2016, Kratzer, C-423/15, ECLI:EU:C:2016:604.  
280  Federal Labour Court, judgment of 18 June 2015, 8 AZR 848/13-A; recent example Labour Court Berlin, 

judgment 23 June 2022, 42 ca 716/22. 

281  State Administrative Court of Berlin and Brandenburg, judgment of 11 December 2015, OVG 4 N 42/14; 
Administrative Court of Berlin, judgment of 8 May 2014, 5 K 420/12; Federal Labour Court, judgment of 
18 March 2010, 8 AZR 77/09.  

282  State Labour Court of Lower Saxony, judgment of 19 April 2012, 4 SaGa 1732/11.  
283  Federal Labour Court, judgment of 19 December 2019, 8 AZR 2/19.  
284  See https://www.antidiskriminierungsstelle.de/SharedDocs/aktuelle-

faelle/DE/Geschlecht/Geschlecht_inhalt_Kinderwunsch.html, last sentences.  

285  Federal Labour Court, judgment of 6 February 2003, 2 AZR 621/01.  
286  Recent example, Higher Labour Court Hamm, judgment of LAG Hamm, 26 January 2022, 3 Sa 1087/21, 

confirmed by Federal Labour Court, judgment of 15 December 2022, 6 AZR 102/22.  

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Country report – Gender equality – Germany – 2023 

4.3.4  Implementation  of  the  exception  on  the  protection  for  women  in  relation  to 

pregnancy and maternity (Article 28(1) of Recast Directive 2006/54) 

There is no explicit implementation of Article 28(1) of Recast Directive 2006/54. However, 
the  Maternity  Protection  Act  offers  broad  protection.  In  2003,  the  Constitutional  Court 
considered that protective measures may not reduce the labour market opportunities of 
women  of  childbearing  age  as  it  breaches  Article 3(2)(2)  of  the  Constitution,  called  by 
some de facto discrimination.287 The case was concerned with the employer’s contribution 
to maternity pay and triggered a change to ensure that employers can receive financial 
compensation from the public health insurance.288 

4.3.5  Particular difficulties 

While  the  General  Equal  Treatment  Act  applies  to  selection  criteria  and  recruitment 
conditions, for access to employment and self-employment (Section 1(2)) and access to 
gainful  employment  and  career  advancement  of  self-employed  (Section 6(3)),  it  only 
includes ‘depended self-employed’ or ‘quasi-subordinates’ (i.e. persons who, because of 
their economic dependency, are to be regarded as persons similar to employees) under 
the scope of working conditions, including issues related to dismissal and pay.289 Real self-
employed  persons  can  only  invoke  protection  under  Section 19  of  the  General  Equal 
Treatment  Act,  which  is  restricted  to  ‘mass  contracts’,  which  are  typically  concluded 
irrespective  of  the  identity  of  the  other  contracting  party,  or  where  the  identity  of  that 
person is of little importance. It would be difficult to challenge any discriminatory working 
conditions or dismissals under that scope. 

The  General  Equal  Treatment  Act  offers  no  effective  protection  against  discrimination, 
especially  in  the  form  of  (sexual)  harassment,  by  supervisors  or  superiors  not  being 
employers,  by  colleagues  and  by  third  parties  such  as  business  partners,  customers  or 
clients.290  The  only  person  liable  is  the  employer.  Although  third  parties  are  indeed 
mentioned  in  Section 12(4)  of  the  General  Equal  Treatment  Act,  the  scope  of  this 
regulation is highly debated. 

4.3.6  Positive action measures (Article 3 of Recast Directive 2006/54) 

The  General  Equal  Treatment  Act  could  not 
the  provisions  of 
Directive 2006/54/EC due to the date  of its  entry into force,291 including positive action 
measures under Article 3 of the Recast Directive. Notwithstanding, Section 5 states that 
‘unequal treatment shall be permissible only where suitable and appropriate measures are 
adopted  to  prevent  or  compensate  for  disadvantages  arising  on  any  of  the  grounds 
referred to under Section 1.’ There is no obligation for private employers to engage with 
positive actions and case law suggests that the definition is rather narrow.292 

implement 

287  Federal Constitutional Court, judgment of 18 November 2003, 1 BvR 302/96.  
288  Gesetz über den Ausgleich von Arbeitgeberaufwendungen und zur Änderung weiterer Gesetze of 

22 December 2005, Official Journal (BGBl) 2005 part I no. 76, page 3686. 

289  See Bauer, J. H. et al. (2011), ‘Section 2 paragraph 16’, Allgemeines Gleichbehandlungsgesetz. Kommentar 

(Commentary on the General Equal Treatment Act), 3rd ed. Munich.  

290  Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, pp. 107ff, with many references.  

291  The General Equal Treatment Act entered into force on 14 August 2006 and thus, the Parliament could not 
take Directive 2006/54 of 5 July 2006 into consideration. While the German Government still claims that 
the GETA would implement Directive 2006/54 as well, the official materials of the legislative procedure 
show clearly that it implements Directives 2000/43, 2000/78, 2002/73 and 2004/113 and no more. 

292  E.g. Labour Court of Berlin, judgment of 5 June 2014, 42 Ca 1530/14 (female only with migration 

background for media traineeship), judgment: 
https://www.hensche.de/Arbeitsrecht_Urteile_Diskriminierung_Maenner_Diskriminierung_von_Maennern_t
ageszeitung_ArbG_Berlin_42Ca1530-14.html.  

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The most notable and most well-known legal positive provisions relate to flexible quotas 
in the federal and state public services, including equality officers  (see above 4.3.6). In 
the 1980s, the structural discrimination against women in the labour market had become 
obvious.  Therefore,  federal  and  state  legislation  and  policies  decided  upon  affirmative 
action in the civil service primarily related to hiring and promotion practices. The precise 
boundaries of positive actions (see 3.5) were litigated in front of the CJEU,293 but Article 3 
of the Constitution is often invoked in favour  of and against positive actions. There is a 
question about their effectiveness, given that the case law requires such a nuanced and 
complicated assessment processes, that makes comparison often impossible. The impact 
of equality officers certainly has influenced the appointment procedures and in the case of 
the federal law they have legal remedies available if they are not properly consulted.294 
However, representation at federal level has slightly improved although not in a way that 
can ensure parity in 2025. 

There  are  various  other  measures  that  have  been  implemented  to  grant  women  equal 
opportunities which are also often viewed within the scope of EU law. For example, in 2002 
the Federal Administrative Court confirmed that women could be granted a longer period 
to open a business after completing a Masters in their trade. These measures do not have 
to be based on Acts of Parliament.295 

  Evaluation of implementation 

While German law overall faithfully implements the EU provisions on equal pay and equal 
treatment within employment, courts often fail to interpret the law effectively or appreciate 
the structural inequality that leads to disadvantages within employment. The gender pay 
gap,  engagement  gap  and  segregation  in  labour  thus  persist.  Equal  representation  on 
company  boards  and  the  civil  service  also  progresses  slowly.  However,  the  Pay 
Transparency Act – while in principle not departing from the narrow distinction between 
equal pay and pay discrimination – has brought about change in the Federal Labour Court’s 
understanding of the burden of proof within pay disputes. Indeed, it considered unequal 
pay  of  the  comparator  sufficient  to  shift  the  burden  of  proof,  even  if  there  were  no 
additional facts that suggested that the differences were due to the workers’ sex, and has 
rejected negotiation skills as justification for pay differences. This is  significant because 
gendered  pay  expectations  have  been  identified  as  one  of  the  main  causes  for  the 
gendered  pay  gap.  It  remains  to  be  seen  if  this  will  invite  a  new  appreciation  of  pay 
disputes. Currently, there is very different case law on pay discrimination outside the scope 
of pensions. The Pay Transparency Act privileging remuneration systems under collective 
agreements  is  certainly  an  obstacle  to  the  analysis  and  removal  of  structural  pay 
discrimination.  Moreover,  transparency  is  a  condition  and  is  no  substitute  for  anti-
discrimination law enforcement: without collective or class action, more rights for works 
councils  and  binding  obligations,  the  principle  of  equal  pay  will  not  be  strengthened  by 
isolated transparency measures. 

293  Judgment of the Court of 17 October 1995, Eckhard Kalanke v. Freie Hansestadt Bremen, Case C-450/93, 
ECLI:EU:C:1995:322; Judgment of the Court of 11 November 1997, Hellmut Marschall v. Land Nordrhein-
Westfalen, Case C-409/95, ECLI:EU:C:1997:533; Judgment of the Court of 28 March 2000, Georg Badeck 
and Others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes 
Hessen, Case C-158/97, ECLI:EU:C:2000:163. 

294  Administrative Court Berlin, judgment of 27 April 2020, 5 K 50.17, 5 K 237.18.  
295  Federal Administrative Court, judgment 18 July 2002, 3 C 53.01. 

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Country report – Gender equality – Germany – 2023 

There seems to be broad discrimination against female employees, especially due to (the 
possibility  of)  pregnancy  and  maternity.  An  empirical  study  on  the  experience  of 
employees  with  care  responsibilities  is  expected  later  this  year296  and  the  ‘motherhood 
penalty’ has been well documented.297 

  Remaining issues 

Not applicable. 

296  Antidiskriminierungsstelle (forthcoming), ‘Diskriminierungserfahrungen von fürsorgenden Erwerbstätigen’ 

available at: 
www.antidiskriminierungsstelle.de/SharedDocs/forschungsprojekte/DE/Studie_DiskrErf_fuersorgender_Erw
erbstaetiger.html. 

297  Lott, Y. & Eulgem, L. (2019), ‘Lohnnachteile durch Mutterschaft. Helfen flexible Arbeitszeiten?’ in WSI 

Report No. 49, https://www.boeckler.de/pdf/p_wsi_report_49_2019.pdf. 

55 

 
 
 
 
 
Country report – Gender equality – Germany – 2023 

5 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85,  relevant  provisions  of  Directives  2006/54,  and 
Directive 2019/1158)298 

  General (legal) context 

5.1.1  Overview of national acts on work-life balance issues 

There is some legislation concerning work-life balance. It is all related to care of children 
or other family members. 

- 
- 

- 

- 

Maternity Protection Act of 23 May 2017, Official Journal 2017, p. 1228; 
Federal  Parental  Allowances  and  Parental  Leave  Act  of  5 December  2006,  Official 
Journal 2006, p. 2748; 
Act on the better reconciliation of family, home care and work of 23 December 2014 
(amending the 2008 Home Care Leave Act and the 2012 Family Home Care Leave 
Act), Official Journal 2014, p. 2462; and 
Act on the further development of part-time work – introduction of bridge part-time 
work of 11 December 2018, Official Journal 2018, p. 2384. 

5.1.2  Political and societal debate and pending legislative proposals 

Following the COVID-19 experience, remote and flexible work has gained revived political 
interest. The previous legislature extended the law on part-time work that previously only 
included a right to reduce working time. Namely, on 11 December 2018, the Act on the 
further development of part-time work – introduction of bridge part-time work was passed, 
amending  the  Part-Time  and  Fixed-Term  Employment  Act,  and  entering  into  force  on 
1 January 2019.299 The current Government’s coalition agreement plans several initiatives 
to  improve  work-life  balance.  This  includes  the  introduction  of  paternity  leave,  the 
possibility to organise work flexibly, an increase of children’s sickness days, and a right to 
‘home office’. It also aims at reforming ‘bridge part-time work’ to increase access to it and 
to  extend  the  protection  from  dismissal  for  three  months  after  returning  from  parental 
leave. All these initiatives have yet to see the light of day. However, a ‘Package for more 
partnership’ has been outlined, which is to include, (1) the introduction of a two-week paid 
leave of absence for the other partner directly after the birth of the child in the Maternity 
Protection  Act  (paternity  leave),  (2)  the  extension  of  the  partner  months  in  parental 
allowance and (3) the extension of parental leave-related protection against dismissal after 
a longer parental leave to ensure a return to work’.300 

298  See Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb and De la Corte Rodríguez, M. (2022), The transposition 
of the Work-Life Balance Directive in EU Member States: A long way ahead, available at: 
https://www.equalitylaw.eu/downloads/5779-the-transposition-of-the-work-life-balance-directive-in-eu-
member-states-a-long-way-ahead. 

299  Act on the further development of part-time work – introduction of bridge part-time work of 11 December 
2018, Official Journal 2018, p. 2384, https://www.bmas.de/DE/Service/Gesetze/brueckenteilzeit.html.  

300  Government 17.06.2022, Parliamentary Documents (Drucksache) 20/2302, online: 

https://dserver.bundestag.de/btd/20/023/2002302.pdf.  

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  Pregnancy and maternity protection301 

5.2.1  Definition in national law (Article 2 of Directive 92/85) 

The question of who a pregnant worker is, is answered by German statutory law. Under 
Section 1, the new Maternity Protection Act of 23 May 2017302 covers any person who is 
pregnant or has given birth recently or is breastfeeding and who is employed or working 
as an intern/trainee or as a public volunteer or in a sheltered workshop for persons with 
disabilities  or  in  a  special  ecclesiastical  service  or  who  is  home-working  or  is  a  quasi-
subordinate worker as well as students and pupils when they are under the obligation to 
attend a lecture, examination or an internship, thus going beyond the strict notion  of a 
worker. In special regulations, civil servants, judges and the military are guaranteed the 
same protection level as any other pregnant or breastfeeding employee. 

As  transgender  persons  can  claim  legal  recognition  of  their  new  gender  status  without 
surgery, the situation of ‘pregnant men’ may occur (although there are going to be fierce 
discussions about the question of whether they, after giving birth, can be recognised as 
mothers  or  fathers  on  the  birth  certificate).  Moreover,  since  intersex*-children  are  no 
longer to be appointed one of two genders after birth, persons without a female or male 
gender status or with a ‘diverse’ status may become pregnant in the future. The law  in 
many places speaks of pregnant and breastfeeding ‘persons’. 

5.2.2  Obligation to inform employer (Article 2 Pregnancy Directive) 

Under Section 15(1) of the Maternity Protection Act, a pregnant woman should inform her 
employer of her pregnancy and the expected date of delivery as soon as she knows that 
she is pregnant. A breastfeeding woman should inform her employer as soon as possible 
that  she  is  breastfeeding.  Under  Section 15(2)  of  the  Maternity  Protection  Act,  at  the 
employer’s request, a pregnant woman must present a medical certificate or the certificate 
of a midwife or maternity nurse as proof of her pregnancy, containing the expected date 
of delivery. 

The  employer  must  not  give  information  about  the  pregnancy  of  the  employee  to  third 
parties within or outside the company except when the person in question is responsible 
for guaranteeing maternity protection in the specific case. Moreover, the works council is 
entitled to information on the name of every pregnant employee, even against their will, 
in order to monitor compliance with health and safety regulations under Section 80 of the 
Works Constitution Act.303 

5.2.3  Case law on the definition of a pregnant worker, a worker who has recently given 

birth and/or a worker who is breastfeeding 

The Federal Labour Court confirmed in 2018 that pregnant self-employed workers are not 
entitled to maternity allowances.304 Other than that, worker status is perceived broadly. 
Moreover, the Federal Labour Court has confirmed that the protection from dismissal as a 
pregnant  worker  applies  from  the  moment  when  the  contract  is  concluded.  It  is  thus 

301  Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the 

safety and health at work of pregnant workers and workers who have recently given birth or are 
breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), OJ L 
348, 28.11.1992. 

302  Act on the Protection of Mothers at work, in training and in higher education (Maternity Protection Act) of 

23 May 2017, Official Journal 2017, p. 1228, https://www.gesetze-im-
internet.de/muschg_2018/BJNR122810017.html.  

303  State Labour Court of Munich, judgment of 27 September 2017, 11 TaBV 36/17.  
304  Federal Labour Court, judgment of 23 May 2018, 5 AZR 263/17, concerning a childminder.  

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irrelevant  whether  the  work  activity  has  started  at  the  time  of  the  dismissal  due  to 
pregnancy.305 

In 2015 and thus prior to the reform, the Federal Labour Court held that  in the case of 
pregnancy  due  to  fertilisation  outside  the  body  (in  vitro  fertilisation),  the  prohibition  of 
termination  under  the  old  Section 9(1)  sentence  1  Maternity  Protection  Act  (now 
Section 17)  applies  from  the  time  a  fertilised  egg  is  inserted  into  the  uterus  (embryo 
transfer). It added that a termination issued because of the – intended – performance of 
in  vitro  fertilisation  and  the  associated  possibility  of  pregnancy  constitutes  direct  sex 
discrimination  under  the  scope  of  the  General  Equal  Treatment  Act.306  In  2022,  it 
confirmed its settled case law, that the pregnancy within the meaning of the law, and thus 
for the purpose of the protection from dismissal, starts 280 days before the calculated due 
date (i.e. for 40 weeks).307 The lower court had assumed protection for only 266 days (i.e. 
38 weeks) as this is the average length of a pregnancy. The Federal Labour Court focused 
on the maximum time limit for the possible onset of pregnancy. The Court recognised that 
pregnancy  was  not  defined  as  such  in  law.  However,  the  protective  scope  is  based  on 
prognoses, for example regarding the expected due date, that is not intended to reduce 
the  protection.  It  then  acknowledged  that  the  280-day  period  includes  2  weeks  during 
which a pregnancy is unlikely. However, it held that what is at issue is not a question of 
determining  the  actual  –  scientific  –  onset  of  pregnancy  in  the  specific  case,  but  of  a 
calculation method for determining the prohibition of dismissal on grounds of pregnancy, 
which is inherent in prognostic elements, and which is oriented towards the constitutionally 
required  protective  mandate.  With  reference  to  Mayr308  and  the  Pregnancy  Directive,  it 
then stated that the earliest possible time of protection is consistent with its aims, at its 
protection  from  dismissal  aims  at  preventing  possible  harm  to  the  physical  and  mental 
condition of the pregnant worker. 

In  2005,  the  Federal  Labour  Court  held  that  a  medically  indicated  abortion  is  also  a 
‘delivery’  within  the  meaning  of  the  old  version  of  the  Maternity  Protection  Act.  This 
includes children that are stillborn or deceased in childbirth if they are heavier than 500g 
(below that weight, it is treated as a miscarriage).309 As such, the women are protected 
from dismissal afterwards. 

5.2.4  Implementation of protective measures (Articles 4-6 of Directive 92/85) 

The protective measures mentioned in Articles 4-7 of Directive 92/85 are implemented in 
German  law.  The  new  Maternity  Protection  Act  focuses  on  two  fields  of  protection: 
unhealthy working time and dangerous working conditions. 

Under  Sections  3  to  8  of  the  new  Maternity  Protection  Act,  several  forms  of  work  are 
prohibited. Night work (as well as night training or night studies) is prohibited between 10 
p.m. and 6 a.m. independently of the working sector’s special needs and may be allowed 
with the consent of the pregnant or breastfeeding employee between 8 p.m. and 10 p.m. 
Working during the postnatal protection period of eight weeks is prohibited. Sunday work 
is prohibited as well but may be allowed under special regulations and with the consent of 
the pregnant or breastfeeding employee. Further extensions of the regular working times 
are  prohibited  for  pregnant  or  breastfeeding  employees.  Pregnant  and  breastfeeding 
employees and civil  servants also  enjoy  special protection,  such as additional breaks or 
the  possibility  to  sit  down.  Additional  breaks  for  breastfeeding  workers  are  defined  as 
working time. The employer must grant a dispensation to the pregnant or breastfeeding 

305  Federal Labour Court, judgment of 27 February 2020, 2 AZR 498/19, 

ECLI:DE:BAG:2020:270220.U.2AZR498.19.0.  

306  Federal Labour Court, judgment of 26 March 2015, 2 AZR 237/14. 
307  Federal Labour Court, judgment of 24 November 2022, 2 AZR 11/22. See also judgment of 27 January 

1966, 2 AZR 141/65; judgment of 26 March 2015, 2 AZR 237/14.  

308  CJEU Mayr C-506/06, judgment of 26 February 2008, Para. 39. 
309  Federal Labour Court, judgment of 15 December 2005, 2 AZR 462/04; judgment of 12 December 2013, 8 

AZR 838/12. 

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Country report – Gender equality – Germany – 2023 

employee for the purpose of medical examinations concerning pregnancy or maternity and 
of examinations or other activities by a midwife. 

During their pregnancy, employees may not perform work that is dangerous to their own 
health or that of the unborn child under Sections 9 to 12 of the new Maternity Protection 
Act, and the same protection is granted to civil servants under the Maternity Protection 
Order. The employer is obliged to perform a risk assessment of the workplaces and work 
that it requires in order to determine whether or not they are potentially dangerous for 
pregnant or breastfeeding workers under Section 11 of the new Maternity Protection Act. 
The Act  contains detailed catalogues  of dangerous  work  or working conditions and thus 
unifies  and  clarifies  various  regulations  on  safety  at  work  from  European  law,  national 
statutes and general regulations and sub-legislative directives. 

In  a  paradigm  shift,  Section 13  of  the  new  Maternity  Protection  Act  provides  for  a 
hierarchical range of employers’ duties to guarantee protection and safety for pregnant or 
breastfeeding  employees. The first and primary task is the substantial reshaping  of the 
work environment.310 Only when the required level of safety cannot be reached by such a 
reshaping or when the reshaping would require a disproportionate effort can the employer 
require  a  change  of  the  specific  workplace.  If  safety  can  neither  be  guaranteed  by 
reshaping the work environment nor by a change of workplace, the employer is not allowed 
to  employ  the  pregnant  or  breastfeeding  employee  during  the  period  of  pregnancy  or 
breastfeeding (generally covering the first year after the birth of the child). By qualifying 
the reshaping of the work environment as a priority and the prohibition of work as a last 
resort,  pregnancy  and  breastfeeding  might  leave  the  status  of  special  obstacles  to  a 
successful working life and may become part of a comprehensive concept of occupational 
safety (influenced by EU law requirements). A newly established Commission for Maternity 
Protection  will  further  develop  guidelines  concerning  risk  assessment,  technical  safety, 
occupational medicines and hygiene. 

This change was not easy to bring about. The legislative procedures took some time, more 
than one draft law was published, discussed, amended and discarded and the contents of 
the law have been changed considerably during this process. For  example, the  German 
Women  Lawyers’  Association  had  rightly  criticised  the  first  draft  as  it  confirmed  the 
discriminatory structures of maternity protection as alien to the world of employment and 
employment prohibitions as the method of choice instead of fostering the autonomy and 
inclusion of pregnant persons and restructuring systems of health and safety at work. 311 
It remains to be seen how the paradigmatic legal change will be implemented and whether 
and  how  it  will  change  working  conditions  and  the  inclusion  of  female  employees  in 
general. The Act was passed by the  Bundestag in May 2017 but most of its regulations 
entered into force on 1 January 2018. 

5.2.5  Case law on issues addressed in Articles 4 and 5 of Directive 92/85 

The Federal Ministry for Family, Senior Citizens, Women and Youth published guidelines 
for  employers  informing  them  about  the  new  maternity  protection.312  There  is  limited 
notable case law on the new Act. 

In 2020, the Social Court (SG) Nürnberg held that if the breastfeeding period is extended 
beyond the statutory 12-month period, there is an entitlement to maternity leave pay in 
cases  of  hazard-related  employment  bans.  If,  for  example,  there  is  no  alternative 
employment  opportunity  due  to  the  size  of  the  practice,  the  employer  must  also  pay 

310  Although not discussed in the legislative process, there are some considerable links to the concept of 

reasonable accommodation. 

311  German Women Lawyers’ Association, https://www.djb.de/verein/Kom-u-AS/K1/st16-05/.  
312  See https://www.bmfsfj.de/bmfsfj/service/publikationen/arbeitgeberleitfaden-zum-mutterschutz/121860.  

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Country report – Gender equality – Germany – 2023 

maternity  leave  wages  during  this  time,  which  the  health  insurance  companies  have  to 
reimburse.313 

5.2.6  Prohibition of night work (Article 7 of Directive 92/85) 

Under Section 5 of the new Maternity Protection Act, night work (as well as night training 
or night studies) is prohibited between 10 p.m. and 6 a.m. independently of the working 
sector’s special needs. Working between 8 p.m. and 10 p.m. is possible, if (1.) the woman 
expressly agrees to do so, (2.) according to the medical testimony, there is nothing to be 
said against the woman’s employment until 10 p.m. and (3.) in particular, an irresponsible 
risk  to  the  pregnant  woman  or  her  child  by  working  alone  is  excluded  (Section 28). 
Pregnant apprentices and students  may study until 10p.m. if (1.) the woman  expressly 
agrees to do so, (2.) participation is required for training purposes at that time, and (3.) 
in particular, an irresponsible risk to the pregnant woman or her child by working alone is 
excluded. 

5.2.7  Case law on the prohibition of night work 

There is no noticeable case law based on the new Act, but it has long been recognised that 
the ban on night work cannot be removed by consent of the employee.314 

5.2.8  Prohibition of dismissal (Article 10(1) of Directive 92/85) 

Pregnant  workers  must  not  be  dismissed  during  their  pregnancy  and  four  months  after 
childbirth (exceeding the time of maternity leave), except under exceptional circumstances 
not related to the pregnancy, miscarriage or giving birth and with the special approval of 
the  supervising  authority  under  Section 17  of  the  Maternity  Protection  Act.  The  new 
regulations cover the same protection against dismissal for women who have suffered a 
miscarriage after the 12th week of pregnancy. 

5.2.9  Redundancy and payment during maternity leave 

Under the prohibition of dismissal during the pregnancy and four months after childbirth, 
employees  cannot  be  made  redundant  during  their  maternity  leave.  In  cases  of  invalid 
dismissal  or  redundancy  during  maternity  leave,  the  pregnant  employee  is  entitled  to 
maternity allowances and the employer has to pay their contributions under the general 
statutory rules. 

5.2.10 Employer’s  obligation  to  substantiate  a  dismissal  in  writing  (Article 10(2)  of 

Directive 92/85) 

Under Section 17(2) of the Maternity Protection Act, the employer is obliged to indicate 
substantiated  grounds  for  the  dismissal  in  writing  during  a  pregnancy  and  until  four 
months after childbirth. This is in full compliance with Article 10(2) of Directive 92/85. 

5.2.11 Case law on the protection against dismissal 

In the case of pregnancy due to fertilisation outside the body (in vitro fertilisation), the 
prohibition of dismissal under the Maternity Protection Act applies from the time a fertilised 
egg is inserted into the uterus (embryo transfer).315 Pregnancy is to be regarded as the 
main reason for dismissal if a worker is dismissed due to leave of absence resulting from 
her inability to work as a result of pregnancy, and the same applies to leave of absence 

313  Social Court (SG) Nürnberg, judgment of 4 August 2020, S 7 KR 303/20. 
314  Federal Labour Court, judgment of 24 June 1960, 1 AZR 96/58; judgment of 8 August 1990, 5 AZR 584/89 

concerning agreement prior to pregnancy. 

315  Federal Labour Court, judgment of 26 March 2015, 2 AZR 237/14.  

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due to in vitro fertilisation.316 In 2022, the Federal Labour Court confirmed its settled case 
law, that the pregnancy within the meaning of the law, and thus for the purpose of the 
protection  from  dismissal,  starts  280  days  before  the  calculated  due  date  (see  above 
5.2.3).317 

In  2012,  the  Administrative  Court  of  Darmstadt  decided  upon  the  high  standards  of 
protection against dismissal during pregnancy and maternity leave.318 The Court explained 
that the protection against dismissal during pregnancy and four months after childbirth is 
based  upon  the  implementation  of  Article 10  of  Directive 92/85/EEC  and  is  very  strict. 
Therefore, the dismissal could only be justified with the special approval of the supervising 
authority  and  under  extraordinary  circumstances  not  related  to  the  pregnancy,  e.g.  in 
cases of particularly serious violations of employment contract obligations by the pregnant 
employee,  which  make  it  indeed  unacceptable  for  the  employer  to  maintain  the 
employment  relationship,  at  least  until  the  end  of  the  pregnancy  or  maternity  leave. 319 
The repeated acceptance of significant overpayments by the pregnant employee due to an 
error of the employer would not suffice. The Court emphasised that, during pregnancy and 
maternity leave, a dismissal procedure according to legal standards with a lower scope of 
protection (e.g. paternal leave protection, see below) may neither be carried out nor even 
be prepared to be carried out after the end of the maternity leave. 

In 2015, the State Labour Court of Berlin and Brandenburg decided that the dismissal of 
a  pregnant  woman  without  the  consent  of  the  supervising  authority  may  constitute  a 
prohibited discrimination on grounds of sex and may oblige the employer to pay monetary 
compensation under the General Equal Treatment Act.320 What is surprising is the cautious 
assessment  of  the  Court  because  the  statutory  prohibition  of  discrimination  under  the 
Maternity Protection Act is as clear as the statutory definition that discrimination on the 
grounds of pregnancy constitutes discrimination on the grounds of sex under the General 
Equal Treatment Act. In 2013, the Federal Labour Court decided that dismissal in violation 
of  the  Maternity  Protection  Act  constitutes  discrimination  on  grounds  of  sex  and  may 
trigger a claim for compensation.321 

The Labour Court of Berlin decided that in the case of a clause in the employment contract 
that provides for the termination of the employment relationship (training relationship) if 
the training is interrupted (here: by pregnancy and maternity protection), there is direct 
discrimination on the grounds of sex and entitlement to compensation.322 The court held 
the  dismissal  to  be  invalid  and  awarded  compensation  in  the  amount  of  three  months’ 
salary  (gross).  The  court  explained  that  the  employer  obviously  wanted  to  evade  the 
gender-specific obligations under the Maternity Protection Act and disregarded the special 
need for protection of their pregnant employee. The court found this all the more serious 
as pregnant women usually find themselves in a stressful situation and in fear  for their 
economic livelihood, which is why they are granted special maternity protection. 

A 2017 decision of the Administrative Court of Mainz suggests problems with the double 
structure of access to court in cases  of dismissal during maternity protection.323 Due to 
the  fact  that  employees  enjoying  maternity  protection  can  only  be  dismissed  with  the 
special approval of the supervising authority, pregnant employees have to challenge their 

316  State Labour Court of Cologne, judgment of 3 June 2014, 12 Sa 911/13.  
317  Federal Labour Court, judgment of 24 November 2022, 2 AZR 11/22. See also judgment of 27 January 

1966, 2 AZR 141/65; judgment of 26 March 2015, 2 AZR 237/14.  

318  Administrative Court of Darmstadt, judgment of 26 March 2012, 5 K 1830/11.DA, 

https://openjur.de/u/433574.html.  

319  Confirmed by the Administrative Court of Frankfurt, judgment of 28 January 2015, 7 K 4016/14.F, and the 

State Administrative Court of Bavaria, judgment of 8 October 2014, 12 ZB 13.1087. 

320  State Labour Court of Berlin and Brandenburg, judgment of 16 September 2015, 23 Sa 1045/15.  
321  Federal Labour Court, judgment of 12 December 2013, 8 AZR 838/12. The claimant who was dismissed 

while suffering a miscarriage was awarded compensation in the amount of EUR 3 000.  

322  Labour Court of Berlin, judgment of 13 October 2017, 6 Ca 2270/17.  
323  Administrative Court of Mainz, judgment of 26 October 2017, 1 K 1061/16.MZ.  

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dismissal before the labour courts and to challenge the approval before the administrative 
courts. The claimant took legal action against the approval before the administrative court 
and failed to take legal action against the dismissal before the labour court simultaneously. 
Although  the  administrative  court  stated  that  she  would  have  lost  her  case  anyway 
because  the  dismissal  was  justified,  this  raises  concerns  about  access  to  justice.  The 
special protection may turn into a special barrier to accessing justice. 

In 2019, the State Labour Court of Hessen decided that the protection against dismissal 
under  Section 17  of  the  Maternity  Protection  Act  enters  into  effect  with  the  effective 
conclusion of the employment contract and not as late as the contractually agreed date 
for the beginning of the work or the actual start of the performance of the work.324 This 
has been confirmed by the Federal Labour Court.325 

In  2020,  the  State  Labour  Court  of  Cologne  considered  comments  indicating  that  an 
employee  was  not  suitable  for  the  (permanent)  role  if  she  already  planned  to  become 
pregnant at the time of recruitment to be sufficient to shift the burden of proof according 
to  Section 22 AGG.326  These  comments  were  made  after  the  written  dismissal  of  an 
employee who had previously had a miscarriage. The employer was unable to demonstrate 
that  the  dismissal  was  not  linked  to  the  planned  pregnancy  and  thus  the  sex  of  the 
employee. It also confirmed again that employers are not allowed to ask applicants about 
potential pregnancies and that employees are not obliged to reveal any current or planned 
pregnancies. 

5.2.12 Protection against dismissal during pregnancy and maternity leave 

Table 2: Protection against dismissal during pregnancy and maternity leave 

Yes/no  Protected period 
Yes. 

-  During pregnancy; 

-  4 months after a 
miscarriage after 
the 12th week of 
pregnancy; 

-  Until the end of 
their protection 
period after 
childbirth, but at 
least until the 
expiry of 4 months 
after childbirth. 

Exceptions 
Yes – but very 
narrow 
exceptional 
cases. 

Specific procedure? 
Yes. 

In special cases that are not 
related to the condition of the 
worker during pregnancy, the state 
authority responsible for 
occupational health and safety may 
exceptionally declare a dismissal 
admissible. The termination must 
be in writing and must state the 
reason for the termination. 

324  State Labour Court of Hesse, judgment of 13 June 2019, 5 Sa 751/18.  
325  Federal Labour Court, judgment of 27 February 2020, 2 AZR 498/19, 

ECLI:DE:BAG:2020:270220.U.2AZR498.19.0. 

326  State Labour Court of Cologne (LAG), judgment of 17 January 2020, 4 Sa 862/17. 

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  Maternity leave 

5.3.1  Length (Article 8 of Directive 92/85) 

Section 3 of the new Maternity Protection Act grants pregnant employees fully paid leave 
for  six  weeks  before,  and  eight  weeks  after  childbirth.  Section 3(2)  provides  for  an 
extended postnatal protection period of 12 weeks in the case of a premature or multiple 
birth or disabilities of the newborn child. 

5.3.2  Obligatory maternity leave 

There is an obligatory period of maternity leave after birth. The prohibition of work in the 
8-  or  12-weeks’  postnatal  protection  period  under  Section 3(2)  of  the  new  Maternity 
Protection Act has only two exceptions: students or pupils can carry on with their studies 
or internships when they explicitly request this. They can withdraw their consent at any 
time.  Furthermore,  the  mother  of  a  child  that  has  died  during  birth  can  return  to  work 
after two weeks of the postnatal protection period when she explicitly requests this and 
when there is no medical objection in a doctor’s report. She can withdraw her consent at 
any time. 

During  the  six  weeks’  prenatal  protection  period  under  Section 3(1)  of  the  Maternity 
Protection Act, the pregnant worker is allowed to work voluntarily as long as she remains 
free to withdraw her consent at any time. 

5.3.3  Legal protection of employment rights (Article 11(1) of Directive 92/85) 

There  are  legal  provisions  guaranteeing  that  the  employment  rights  relating  to  the 
employment  contract  are  ensured  in  the  cases  referred  to  in  Articles 5,  6  and  7  of 
Directive 92/85. A pregnant or breastfeeding employee is entitled to her former average 
pay during the time she is not allowed to perform her usual work because of her pregnancy 
or  maternity  (including  employment  prohibitions  due  to  dangerous  working  times  or 
dangerous working conditions as well as the time needed for medical examinations or for 
breastfeeding)  under  Sections  18  (‘maternity  protection  remuneration’)  and  23  of  the 
Maternity  Protection  Act,  and  her  holiday  entitlement  is  completely  preserved  under 
Section 24. 

5.3.4  Legal protection of rights ensured from the employment contract (Article 11(2) of 

Directive 92/85) 

The employment rights relating to the employment contract (including pay or an adequate 
allowance) are ensured because the  employment relationship remains totally unaffected 
during this leave. During maternity leave, employees are entitled to maternity allowances 
to  the  amount  of  their  last  net  income  under  Sections 19  and 20  of  the  new  Maternity 
Protection Act. 

5.3.5  Level of pay or allowance (Article 11(3) of Directive 92/85) 

For dependent employees, maternity leave is fully paid: either from allowances awarded 
by  the  statutory  health  system  and  the  employer’s  subsidies  to  the  allowance  or  from 
allowances awarded from federal funds and the employer’s subsidies to them. 

Statutory maternity benefits are supplemented by all employers and these supplements 
are reimbursed. The statutory health insurance and the Federal Insurance Authority pay 
maternity  allowances  of  up  to  EUR 13  per  day  or  EUR 210  in  total.  The  employers  are 
obliged  to  pay  the  difference  between  EUR 13  per  day  and  the  last  net  income  of  the 
employee under Section 20 of the new Maternity Protection Act, but they are entitled to a 
full reimbursement of these payments which is financed by a general contribution by all 

63 

 
 
 
 
 
 
 
 
 
 
 
 
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employers under a complicated contribution procedure. In the past, the costs were shared 
between  the  statutory  health  insurance  scheme  and  the  employer  of  the  pregnant  or 
breastfeeding  worker  until  the  Federal  Constitutional  Court declared  that  this  regulation 
was unconstitutional due to it creating de facto barriers for women to enter employment.327 

As  a  supplement  to  the  maternity  allowance,  the  difference  between  EUR 13  and  the 
average daily salary for the last three calendar months before the start of the protection 
period, reduced by the statutory deductions, is paid. A woman whose employment begins 
during  the  protection  periods  before  or  after  childbirth  is  paid  the  maternity  allowance 
supplement from the beginning of the employment relationship. Section 21 gives effect to 
the CJEU case law as per increase of pay during maternity leave. In Gillespie the CJEU held 
that while women are not in principle entitled to full pay or a percentage of their pay during 
maternity,  if  the  maternity  pay  is  calculated  ‘on  the  basis  of  pay  received  by  a  woman 
before  the  commencement  of  maternity  leave,  the  amount  of  benefit  must  include  pay 
rises awarded between the beginning of the period covered by reference pay and the end 
of maternity leave, as from the date on which they take effect.’328 Reduced income prior 
to the leave period due to temporary part-time parental leave may not negatively affect 
the calculation of maternity pay. 

Helping spouses and self-employed women are not covered by the Maternity Protection 
Act and not entitled to maternity allowances. The new Maternity Protection Act does not 
terminate the unequal treatment of self-employed persons. As such it has been criticised 
for  failing  to  meet  the  requirements  of  Directive 2010/41/EU.329  Only  self-employed 
women who are voluntarily insured under the statutory health insurance scheme (which 
is  not  the  rule)  including  sickness  benefits  are  entitled  to  maternity  allowances  in  the 
amount of these sickness benefits (usually 70 % of their former income).330 The Federal 
Constitutional Court has decided that this unequal treatment of self-employed persons is 
compatible with the constitutional principle of equality.331 

Although quasi-subordinate workers are covered by the new Maternity Protection Act, they 
are explicitly not entitled to maternity allowances except when they are insured under a 
statutory health insurance scheme and even then, the allowance is no more than EUR 13 
per  day  and  EUR 210  in  total.332  With  regard  to  the  criteria  for  a  comparable  need  for 
social protection, these mothers (to be) should be equally covered. 

5.3.6  Conditions for eligibility (Article 11(4) of Directive 92/85) 

There are no further conditions for eligibility for benefits applicable in German legislation. 
The  Maternity  Protection  Act  covers  various  kinds  of  employees  (see  above)  without 
further requirements, such as a minimum duration of employment relationship or the like. 

327  Federal Constitutional Court, judgment of 18 November 2003, 1 BvR 302/96. For further information see 

Krause, R. (2010), ‘Schutzvorschriften und faktische Diskriminierung’ (Protective Regulations and de facto 
Discrimination) in Hohmann-Dennhardt, C. et al. (eds.), Geschlechtergerechtigkeit. Festschrift für Heide 
Pfarr, Baden-Baden: Nomos, pp. 392-404.  

328  CJEU Judgment of 13 February 1996 Gillespie and Others C-342/93.  
329  See German Women Lawyers’ Association, https://www.djb.de/verein/Kom-u-AS/K1/st16-05/.  
330  Concerning the problems involved see Social Court of Reutlingen, judgment of 24 June 2010, S 14 KR 

3892/09.  

331  Federal Constitutional Court, judgment of 3 April 1987, 1 BvR 1240/86.  
332  The Federal Social Court, judgment of 26 September 2017, B 1 KR 31/16 R, decided that public 

broadcasters are obliged to contribute to the funding of maternity allowances for all persons for whom they 
pay social security contributions, even if they classify these persons as ‘freelancers’ under labour law. 

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5.3.7  Right to return to the same or an equivalent job (Article 15 of Directive 2006/54) 

A  special  provision  that  guarantees  the  right  of  a  woman  to  return  to  her  job  or  to  an 
equivalent job after maternity leave, on terms and conditions that are no less favourable 
to  her,  and  to  benefit  from  any  improvement  in  working  conditions  to  which  she  would 
have been entitled during her absence is not necessary under German law. 
Due to the German conception of maternity leave, the question of ‘returning to the same 
job’  does  not  arise  because  the  employment  relationship  remains  totally  unaffected. 
However,  a  transfer  to  a  non-equivalent  post  after  maternity  leave  would  be  direct 
discrimination under the General Equal Treatment Act and the pregnant worker would be 
awarded compensation.333 

Section 25 of the new Maternity Protection Act clarifies that after the postnatal protection 
period, the employee has the right to be employed in accordance with the conditions that 
have been contractually agreed upon. 

5.3.8  Legal right to share maternity leave 

German law does not provide for a legal right to share (part of) the maternity leave period, 
as it strictly distinguishes between maternity and parental leave. 

5.3.9  Case law 

In  2021,  the  Federal  Labour  Court  considered  the  way  the  maternity  pay  is  calculated. 
Accordingly, the last three calendar months before the start of the protection period, which 
are to be used as a basis for calculating the subsidy for maternity allowance, do not have 
to  have  immediately  preceded  the  protection  period.  Therefore,  in  the  case  of  another 
birth  immediately  after  taking  parental  leave,  the  remuneration  of  the  three  calendar 
months prior to parental leave is decisive.334 

In  2016,  the  Federal  Court  of  Justice  had  to  decide  that  a  criminal  court  was  illegally 
constituted because a female judge was involved in the decision-making process during 
her  obligatory  period  of  maternity  leave  after  birth.335  The  problem  was  that 
comprehensive criminal proceedings may not be suspended for more than six weeks, while 
the obligatory maternity leave is for eight weeks.  The same restrictions do not apply to 
lay assessor/jurors (Schöffen) as it is a voluntary activity.336 

In 2002, the Federal Labour Court held that the voluntary choice of the pregnant workers 
to work prior and up to the due date has to be a real choice and thus must be free from 
external  pressure.  In  the  case,  the  pregnant  worker  was  at  risk  of  losing  annual  leave 
entitlements  within  collective  agreements  due  to  absence  from  work.337  The  court  also 
confirmed that the eight-week compulsory maternity leave after the birth aims at giving 
women time to recover from the birth and to establish and deepen the relationship with 
the child.338 

In 2019, the State Administrative Court of Bremen decided that a female civil servant who 
was temporarily unable to occupy a higher grade post because  of  a medical prohibition 
under the Maternity Protection Act must not be treated less favourably in respect of the 
length  of  the  probationary  period  than  a  civil  servant  who  was  temporarily  unable  to 
occupy  the  higher  grade  post  because  of  illness.339  The  Social  Court  of  Nürnberg 

333  Labour Court of Wiesbaden, judgment of 18 December 2008, 5 Ca 46/08.  
334  Federal Court of Justice, judgment of 19 May 2021, 5 AZR 378/20.  
335  Federal Court of Justice, judgment of 7 November 2016, 2 StR 9/15.  
336  Federal Court of Justice, judgment of 30 September 2021, 5 StR 161/21, 

ECLI:DE:BGH:2021:300921U5STR161.21.0. 

337  Federal Labour Court, judgment of 20 August 2002 9 AZR 353/01. 
338  Federal Labour Court, judgment of 6 June 2005, 6 AZR 108/01. 
339  State Administrative Court of Bremen, judgment of 9 September 2019, 2 LA 110/19.  

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considered that the protection goes beyond 12 months. The claimant was unable to return 
to work due to an employment ban related to breastfeeding. She was thus entitled to the 
right provided by the Maternity Protection Act including pay beyond the first 12 months.340 
However,  12-month  maximums  are  recognised  outside  the  scope  of  the  Maternity 
Protection Act and were not deemed unconstitutional.341 In 2016, the State Labour Court 
of Berlin and Brandenburg decided that an entitlement to maternity allowances can also 
be claimed if an employment prohibition pursuant to Section 3 of the Maternity Protection 
Act already exists from the first day of the employment relationship, and that in this case, 
the regular remuneration for the agreed working hours must be taken as a basis.342 The 
Federal Labour Court held that the entitlement to maternity allowance does not cease to 
apply  for  the  entire  period  of  protection  if  the  employment  relationship  has  been 
suspended  at  the  beginning  of  the  protection  period  (as  per  Section 3(2)  Maternity 
Protection Act) due to an agreed unpaid special leave. Rather, the entitlement to maternity 
benefits is only excluded until the agreed end of the unpaid special leave.343 

The Federal Labour Court confirmed in 2018 that pregnant self-employed workers are not 
entitled to maternity allowances.344 

The Federal Labour Court has confirmed that remaining annual leave must be transferred 
to the next year once the protective period has started.345 

While periods of long-term unpaid absence and sick leave of more than three months do 
not  qualify  as  a  probationary  period,  this  may  not  exclude  absences  due  to  protective 
periods under the Maternity Protection Act. Doing so is contrary to the Ordinance on the 
Careers of Civil Servants in the State of North  Rhine-Westphalia and the General Equal 
Treatment Act.346 

5.3.10 Table on Maternity leave 

Table 3 Maternity leave: 

Duration 

Obligatory 
period 

14 weeks (or 
18 weeks). 

Yes. 

Possibility 
to share 
maternity 
leave? 
No. 

8- or 12-
week 
postnatal 
protection. 

6 weeks 
prenatal + 
8 weeks 
postnatal (or 
12 weeks in 
the case of a 
premature or 
multiple birth 
or disability of 
the newborn 
child). 

Payment or 
allowance 

Right to return 
after the end of 
maternity leave 

Yes (both, as 
the top up is 
received from 
the employer, 
but the 
employer can be 
reimbursed). 

Yes, but not 
constructed as such, 
meaning there is no 
explicit right. 
Technically, the 
question of 
‘returning to the 
same job’ does not 
arise because the 
employment 
relationship remains 
totally unaffected. 

340  Social Court of Nürnberg, judgment of 4 August 2020, S 7 KR 303/20. 
341  Higher State Court of Cologne, judgment of 21 February 2022, ECLI:DE:OLGK:2022:0221.NOT2.21.00; this 
judgment concerned the appointment of a notary that required 3 years of uninterrupted work and took into 
account 12 months of interruption for care responsibilities including maternity and parental leave.  

342  State Labour Court of Berlin and Brandenburg, judgment of 30 September 2016, 9 Sa 917/16.  
343  Federal Labour Court, judgment of 25 February 2004, 5 AZR 160/03.  
344  Federal Labour Court, judgment of 23 May 2018, 5 AZR 263/17, concerning a childminder.  
345  Federal Labour Court, judgment of 9 August 2016, 9 AZR 575/15.  
346  Administrative Court Cologne, judgment of 26 August 2021, 19 k 5799/18.  

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  Adoption leave 

5.4.1  Existence of adoption leave in national law 

German  legislation  provides  for  adoption  leave.  The  provisions  of  the  2007  Federal 
Parental Allowance and Parental Leave Act (see below) apply directly and without special 
regulations to adoptive parents. 

5.4.2  Protection against dismissal (Article 16 of Directive 2006/54) 

This  legislation  partly  provides  for  protection  against  dismissal  of  workers  who  take 
adoption leave and/or specifies their rights after the end of adoption leave (see below). 

5.4.3  Case law 

There seems to be noticeable case law on this. The Labour Court of Berlin decided on an 
adoptive  mother’s  request  for  part-time  work  during  parental  leave  but  the  adoption 
played no role.347 

  Leave in relation to surrogacy 

5.5.1  Prohibition of surrogacy 

Surrogacy  itself  is  not  explicitly  prohibited  but  surrounding  legal  bans  make  it  de  facto 
impossible in Germany. 

Doctors are criminally liable if they assist a surrogacy. Section 1(1) No. 7 of the Law on 
the Protection of Embryos prohibits the artificial insemination of a woman who, after birth, 
gives her child to a third party (surrogate mother). It can be punished with imprisonment 
of up to three years or with a fine. It is also illegal for women to donate eggs (while men 
can donate sperm). Moreover, the person who gives birth to a child is the legal mother 
even  if  they  are  not  genetically  related  to  the  child  (Section 1591  Civil  Code  (BGB)). 
Moreover, the Adoption Placement Act prohibits surrogate mother placements. 

5.5.2  Leave in relation to surrogacy 

Leave will only be available to the person who gave birth to the child, as outlined above. 

5.5.3  Case law on leave in relation to surrogacy 

No relevant case law is known. 

The  case  law  of  the  Federal  Supreme  Court  mostly  deals  with  the  legal  recognition  of 
foreign  surrogacies,  related  adoption,  registration  of  birth  in  Germany,  and  the  ordre 
public.348 

347  Labour Court of Berlin, judgment of 11 November 2015, 60 Ca 10222/15.  
348  Federal Supreme Court judgment of 5 September 2018, XII ZB 224/17; judgment of 20 March 2019, XII 

ZB 530/17. 

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Country report – Gender equality – Germany – 2023 

  Transposition of the Work-Life Balance Directive 2019/1158 in general349 

5.6.1  Transposition of the Work-Life Balance Directive (WLB) by 1 January 2023350 

Many or even most of the key rights under the WLB were already law in Germany before 
the  Directive  was  passed.  This  specifically  included  paid  periods  of  leave,  the  non-
transferable nature of some  of the  parental leave period (two months), emergency and 
care leave related to ad hoc care requirements, and rules on flexible working (i.e. part-
time work and part-time parental leave). As such, the old Conservative/Labour and new 
Labour/Green/Liberal Government took the view that no, or only very limited transposition 
was necessary. This Act from 16 December 2022 thus only extended the right to request 
carer leave to  employees working for  smaller  employers,  expanded the competences of 
the  Federal  Equality  Agency  to  include  leave-related  discrimination  and  included  some 
obligations to give written reasons for the rejection of the request. The most salient gap 
in  the  implementation  relates  to  the  lack  of  paternity  leave.  Both  governments  have 
considered  the  existing  legal  rights  to  be  sufficient,  given  that  it  is  indeed  possible  for 
fathers  (i.e.  the  other  parent)  to  take  parental  leave  right  after  the  birth  of  the  child. 
However, there are good reasons to question this assessment, given that parental leave 
and  paternity  leave  have  different  purposes  and  that  the  former  is  not  taken  in  direct 
relation  to  the  birth  of  the  child.  The  current  Government  indeed  plans  to  introduce  a 
paternity  leave  period  of  10  days  as  agreed  in  the  coalition  agreement.  However,  the 
project has been delayed due to political and financial turmoil related to the Ukrainian war. 
The law is expected to be introduced in 2023 or 2024. 

Relevant pieces of legislation: 

- 

- 

- 

- 

- 

- 

Gesetz  zum  Elterngeld  und  zur  Elternzeit  (Act  on  Parental  Allowance  and  Parental 
Leave) regulates the right to parental leave and pay; 

Pflegezeitgesetz  PflegeZG  (Care  Act)  allows  for  temporary  leave  for  the  care  of  a 
relative  including  10  days  of  ad  hoc  care  to  organise  an  acute  care  situation 
(Section 2(1)); 

Familienpflegezeitgesetz  –  FPfZG  (Family  Care  Act)  allows  for  temporary  leave  to 
care for a relative; 

Gesetz über Teilzeitarbeit und befristete Arbeitsverträge (Law on part-time work and 
fixed-term contracts) regulates and protects part-time workers including the right to 
‘bridge part-time work’, i.e. reducing working time for a limited period only (Sections 
8 and 9); 

The BGB (Civil Code) also lists several occasions when work can be refused due to 
force majeure (Section 275(3)); and 

SGB V (Fifth  Code  of  Social  Law)  provides  a  right  to  ad  hoc  (paid  and  unpaid) 
leave to take care of ill children (Section 45(1) and (2)). 

The  sections  apply  to  all  workers/employees.  The  2022  Act  expanded  the  scope  of  the 
Family  Care  Act  to  include  rights  for  employees  working  for  small  or  medium  size 
enterprises (25 of 15 employees respectively). 

349  De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, available at: https://www.equalitylaw.eu/downloads/5779-the-transposition-of-
the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead. 

350  By 2 August 2022 (Article 20(1)) and by 2 August 2024 (Article 20(2)) WLB. See De la Corte Rodríguez, M. 
(2022), The transposition of the Work-Life Balance Directive in EU Member States: A long way ahead, 
Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-transposition-of-the-work-life-
balance-directive-in-eu-member-states-a-long-way-ahead. 

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The Act on Parental Allowance and Parental Leave is not limited to employees. Regarding 
Parental Allowance/Pay, beneficiaries have to live in Germany (domicile/main residence) 
(1), with their child in the same household (2), take care and raise the child (3), and do 
not work full time while receiving the pay (4) (Section 1(1) Act on Parental Pay and Leave). 
There are additional provisions for relatives and step-parents. Employees are entitled to 
parental leave if they live with their child (or in similar constellations, such as fostering, 
step-parents or caring relatives) and care for and raise the child (Section 15(1)(1) Law on 
Parental Pay and Leave). 

5.6.2  Short description of child-related leave 

Overall,  the  pay  provisions  regarding  parental  leave  are  very  much  focused  on  both 
parents  taking  some  leave.  Germany  provides  for  14  months  of  parental  leave 
pay/allowance,  including  2  months  of  non-transferable  pay  entitlements.  Maternity 
pay/leave is deducted from that. In practice that means that both parents have to take at 
least 2 months of paid leave, with another 10  months  of paid leave that can be shared 
between them. The current Government plans to extend the number of non-transferable 
months.351 There is also the opportunity to receive part-time parental pay. A parent can 
work up to 32 hours a week and receives half of the pay for twice as many months. There 
are additional benefits when both parents work part-time. The ‘partner bonus’ (Section 4b) 
provides additional months of parental pay if both parents work simultaneously for four 
months (between 24 and 32 hours). 

In addition to the pay entitlements, both parents have a non-transferable right to leave. 
Section 15 and 16 Act on Parental Allowance and Leave entitles each parent to parental 
leave up to the child’s third year of life. Thus, parents are entitled to 36 months of leave 
for each child, but the maternity leave period reduces the entitlement. For children born 
after the 30 June 2015, 24 months of parental leave can be spread out between the age 
of three and eight. The employer can only refuse the transfer to the later time because of 
serious operational reasons. Parents can work up to 32 hours per week during part-time 
parental leave, but periods are not extended because leave is only taken part-time. 

Care for  children is also  covered under the Family Care Act and Care Act, but  refers to 
health-related care, not general childcare. 

As per Section 45 Fifth Code of Social Law, ad hoc leave to care for children who are ill 
(up to 12 years old or disabled) is limited to 10 days per year per child (20 days in  the 
case  of  single  parenting)  with  an  absolute  maximum  of  25  working  days  per  year  (50 
working days in the case of single parenting). 

  Paternity leave 

5.7.1  Paternity leave in national law (Article 16 Recast Directive and Article 3(a) and 4 

WLB Directive) 

German law does not provide for paternity leave. 

Civil servants can take one day off on the day of the birth. Every male/non-birthing parent 
can  take  parental  leave  from  the  day  of  birth.  As  such,  the  Conservative/Labour 
Government (2017-2021) took the view that additional introduction of parental leave was 
not  necessary  even  in  the  light  of  the  Work-Life  Balance  Directive 2019/1158.  It  was 
indeed highlighted that this could be harmful, as paternity leave is quite short compared 
with the time that many fathers currently take after birth. The new Labour/Green/Liberal 

351  Government 17.06.2022, Parliamentary Documents (Drucksache) 20/2302, online: 

https://dserver.bundestag.de/btd/20/023/2002302.pdf.  

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Government  plans  to  introduce  paternity  leave.352  However,  this  has  been  delayed.  It 
considers the current legal framework sufficient regarding the Directive’s requirement to 
introduce  paternity  leave  because  of  the  relatively  flexible  and  generous  provision  on 
parental leave, that already enables fathers to take two weeks’ leave or more in connection 
with the child’s birth. 

5.7.2  Paid paternity leave (Article 8(1) and (2) WLB) 

Not applicable. 

5.7.3  Protection against unfavourable treatment and dismissal (Article 16 of the Recast 

Directive) 

Not applicable. 

5.7.4  Case law 

Not applicable. 

5.7.5  Table on paternity leave 

Table 4: Paternity leave 

Who is 
entitled? 

Duration  Possibility to 

share paternity 
leave? 
N/A. 

Payment or 
allowance 

N/A. 

Qualifying 
conditions for 
allowance 
N/A. 

None. 

N/A. 

  Parental leave353 

5.8.1  Implementation  of  Directive 2019/1158  (Articles  3,  5,  8,  20(1)  and  20(2)  WLB 

Directive)354 

The Directive has not been implemented explicitly as most of the rights already existed in 
German  law.  The  Act  on  Parental  Allowance  and  Leave  covers  parental  pay  and  leave, 
including the non-transferable nature of the leave period and some of the pay. 

5.8.2  Parental leave in national law (Article 5(1) and (4) WLB Directive) 

Sections 15 and 16 of the Act on Parental Allowance and Parental Leave provide for three 
years  of non-transferable parental leave. In the case of an adopted  child and a child in 
full-time  or  adoption  care,  parental  leave  of  up  to  three  years  in  total  from  the  date  of 
adoption may be granted until the child’s eighth birthday. Any periods of maternity leave 
that were taken are deducted from this. Leave can be taken from the birth of the child or 
right after the compulsory maternity leave. De facto this means that both parents have 

352  Coalition Agreement 2021-2025, available at: 

www.bundesregierung.de/resource/blob/974430/1990812/04221173eef9a6720059cc353d759a2b/2021-
12-10-koav2021-data.pdf?msclkid=d53bbb10c7cb11ecada29555b28298d0. 

353  See Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb. See also De la Corte Rodríguez, M. (2022), The 
transposition of the Work-Life Balance Directive in EU Member States: A long way ahead, Annex I, available 
at: https://www.equalitylaw.eu/downloads/5779-the-transposition-of-the-work-life-balance-directive-in-eu-
member-states-a-long-way-ahead. 

354  By 2 August 2022 (Article 20(1)) and by 2 August 2024 (Article 20(2)) WLB. See De la Corte Rodríguez, M. 
(2022), The transposition of the Work-Life Balance Directive in EU Member States: A long way ahead, 
Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-transposition-of-the-work-life-
balance-directive-in-eu-member-states-a-long-way-ahead. 

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access to the same amount of leave. A period of up to 24 months may be taken between 
the child’s third birthday and the age of eight under Section 15(2) of the Federal Parental 
Allowance and Parental Leave Act. Part-time leave is also available, as parents can work 
up to 32 hours per week during the leave period. The absolute maximum of three years is 
not impacted by the part-time nature of the leave. 

According to Section 15(2) employees are entitled to parental leave if they live with their 
child (or stepchild, foster child) and take care of and educate this child themselves. 
The right is also available to relatives of the third degree and their spouse, if the parents 
are unable to look after their child due to a serious illness, severe disability or death of the 
parents and the right has not been used by anybody else. Parents who do not have custody 
and persons who take  care  of stepchildren or  foster children  require the consent of the 
parent with custody. Grandparents are entitled to leave if their grandchild lives with them 
in the same household and the parent is still a minor or in full-time education and neither 
parent is on leave. 

Generally parental leave is expressed in months. Each parent can divide his or her parental 
leave  into  three  periods;  a  distribution  over  further  periods  is  only  possible  with  the 
consent of the employer. An approved extension of the first period does not count as a 
second period. The employer may refuse to grant a third period of parental leave within 
eight weeks of receipt of the application for urgent operational reasons if this period is to 
be between the  child’s  third birthday and the  child’s  eighth birthday.  Further periods  of 
leave must be approved by the employer. 

There is no work and/or length of service requirement in order to benefit from parental 
leave. The entitlement to parental leave requires no specific period of service.  However, 
there is a minimum service requirement after the return from leave. The employee can 
only  terminate  the  employment  relationship  at  the  end  of  parental  leave  with  a  notice 
period of three months (Section 19). Employees under fixed-term contracts have a right 
to parental leave just as any other employed parent, but the contract may expire during 
the  parental  leave.  Exceptions  to  this  rule  apply  to  fixed-term  contracts  for  junior 
researchers at universities and for vocational training. However, a right to request part-
time parental leave if an agreement with the employer turns out to be impossible can only 
be made in the case of six months’ uninterrupted employment. 

Administrative law related to those working in the public administration goes beyond these 
rights.  Civil  servants  can  request  a  reduction  of  their  working  time  in  the  amount  of  at 
least half of the regular working time for a defined period of time without further conditions 
under Section 91 of the Federal Civil Service Act (Bundesbeamtengesetz, BBG)355 or under 
the  states’  civil  service  legislation  unless  there  are  opposing  operational  reasons.  After 
that period, the civil servant can return to full-time work or request another period of part-
time work. The request for part-time work due to family responsibilities (care for children 
under  the  age  of  18 or  dependent  relatives)  can  only  be  refused  due  to  compelling 
opposing  operational  reasons  (Section 92  BBG).  A  caring  civil  servant  is  entitled  to  a 
reduction according to his or her needs, but all periods of part-time work in the amount of 
less  than  half  of  the  regular  working  time  together  must  not  exceed  15  years.  Under 
Sections 15-17 of the Federal Equality Act (Bundesgleichstellungsgesetz, BGlG),356 every 
department within the civil service has to further reconciliation, has to approve requests 
for  part-time  work  due  to  care  duties  unless  there  are  compelling  opposing  operational 
reasons,  explicitly  including  requests  by  civil  servants  with  supervising  or  management 
responsibilities, and has to prefer equally qualified members of the civil service working 
part-time due to care duties when filling full-time vacancies. 

355  Federal Civil Service Act (Bundesbeamtengesetz) of 5 February 2009, Official Journal (Bundesgesetzblatt, 

BGBl.), part I, p. 160, http://www.gesetze-im-internet.de/bbg_2009/BJNR016010009.html.  

356  Federal Equality Act (Bundesgleichstellungsgesetz) of 24 April 2015, Official Journal (Bundesgesetzblatt, 

BGBl.), part I, p. 642, http://www.gesetze-im-internet.de/bgleig_2015/BJNR064300015.html. 

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Country report – Gender equality – Germany – 2023 

5.8.3  Individual nature of the right to parental leave and transferability (Article 5(2) WLB 

Directive) 

Parental leave is an individual non-transferable right. Section 15(3) of the Act on Parental 
Allowance and Leave makes clear that  parental leave  can be taken, even on a pro  rata 
basis, by either parent alone or by both parents together. Transferability is only relevant 
regarding the allowance. Thus, while each parent is entitled to three years of leave, they 
are only entitled to 14 months of parental pay (see details below) as long as both parents 
take  at  least  2  months  of  leave.  As  such,  they  can  share  10  months  of  parental  pay 
between them as they wish. 

5.8.4  Period of notice (Article 5(3) WLB Directive) 

Under  Section 16(1)  of  the  Federal  Parental  Leave  and  Parental  Allowances  Act,  the 
employer must be notified of the intention to take parental leave. The notice period is at 
least 7 weeks before the beginning of the parental leave, and is at least 13 weeks when 
the  leave  is  taken  between  the  third  and  eighth  birthday  of  the  child.  The  notice  must 
contain the precise dates of the beginning and the end of the parental leave in the next 
two  years.  A  reasonable  shorter  period  is  exceptionally  possible,  in  cases  of  serious 
reasons.  If,  for  a  reason  for  which  they  are  not  responsible,  employees  are  unable  to 
request parental leave in good time immediately following the maternity protection period 
under  the  Maternity  Protection  Act,  they  may  do  so  within  one  week  after  the  reason 
ceases to apply. 

The same notice period applies under Section 15(7) if one requests a reduction of working 
time (part-time parental leave) because an agreement with the employer was not possible. 
The rejection due to urgent occupational reasons must follow in writing within four or eight 
weeks, depending on whether the age is younger or older than three years old. 

5.8.5  Postponement of parental leave (Article 5(5) WLB Directive) 

In  principle,  parents  are  entitled  to  parental  leave  and  do  not  need  the  consent  of  the 
employer. However, extensions of leave require the consent of the employer.  There are 
situations where the granting of parental leave may be postponed for justifiable reasons 
related to urgent operational reasons. The third period of parental leave can be  refused 
by the employer due to urgent business reasons if it is taken between the third and eighth 
birthday of the child. Taking more than three periods of parental leave requires the consent 
of the employer. 

5.8.6  Forms of parental leave (Article 5(6) and (7) WLB Directive) 

Parental leave can be taken full- or part-time. Employees may work up to 32 hours a week. 
It can also be a combination of both. 

Regarding  part-time  parental  leave  the  Act  draws  a  difference  between  employers  with 
more  than  15  (full-time)  employees  and  smaller  enterprises.  Under  Section 15(5)  any 
employee can request a reduction in working hours and their distribution. The employer 
and  the  employee  should  agree  on  the  application  within  four  weeks.  If  the  employer 
rejects the application, he or she must inform the employee of this within the four weeks 
providing a justification. If no agreement can be reached, the reduction of working time 
can  be  requested  twice  throughout  the  period  of  parental  leave,  if  (1)  more  than  15 
employees are employed,  (2) the employment relationship existed for  six uninterrupted 
months,  (3)  the  working  time  reduction  relates  to  at  least  two  months  of  reduction 
(between 15-32 hours), and (4) there are no urgent  occupational  reasons to reject the 
request. 

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5.8.7  Special rules and exceptional conditions for parents of children with a disability or 

long-term illness (Article 5(8) WLB Directive) 

There are no special rules / exceptional conditions for access and modes of application of 
parental leave to the needs of parents of children with a disability or a long-term illness 
under the Federal Parental Leave and Parental Allowances Act. 
Premature  termination  due  to  inter  alia  serious  illness,  severe  disability  or  death  of  a 
parent or a child of the entitled person may only be rejected in writing by the employer 
within four weeks for urgent operational reasons. 

5.8.8  Paid parental leave (Article 8(1) and (3) WLB Directive) 

Employees on parental leave do not receive remuneration. However, parents receive an 
allowance  from  the  state.  There  are  no  qualifying  conditions,  as  the  entitlement  is  not 
limited to employees. According to Section 1(1) Act on Parental Allowance and Leave, the 
person (1) has to live in Germany (domicile/main residence), (2) with their child in the 
same household (there are additional provisions for relatives and step-parents), (3) take 
care  of  and  raise  the  child,  (4)  and  do  not  work  full  time  while  receiving  the  pay 
(Section 1(1) Law on Parental Pay and Leave). This entitles parents to some parental pay, 
even if they work part-time (up to 32 hours a week). There is no entitlement to parental 
pay if the person’s previous year’s income was higher than EUR 250 000 or if both parents 
earn a joint income higher than EUR 300 000. 

Section 2  Act  on  Parental  Allowance  and  Leave  provides  that  parents  on  leave  receive 
67 % of their previous income; with an absolute minimum of EUR 300357 and a cap set at 
EUR 1 800  per  month.  If  the  previous  income  is  lower  than  EUR 1 000,  the  percentage 
increases by 0.1 % for every EUR 2 below EUR 1 000, up to 100 %. If the previous income 
is higher than EUR 1 200 a month, the percentage  decreases by 0.1 % for every EUR 2 
that the income is higher than EUR 1 200, down to 65 %. Thus, those with well-paid work 
will usually receive 65 % of the previous income or EUR 1 800. Benefits from maternity 
pay are offset with parental leave payments, meaning that the total entitlement of both 
payments is 14 months. 

Two months of this pay are non-transferable, meaning that both parents have to take at 
least 2 months of leave, if they want to receive the full 14 months of parental allowance. 

There is a sibling bonus, either if there are two or more children under the age of three or 
three  or  more  children  under  the  age  of  six  in  the  same  household.  In  that  case  the 
parental  pay  is  increased  by  10 %  and  by  at  least  EUR 75.  There  is  also  an  additional 
allowance  of EUR 300 per  child in the case  of  multiple births. If parents work part-time 
(up  to  32  hours)  while  receiving  parental  pay,  the  difference  between  current  average 
income and prior income is used to calculate the parental leave entitlement. A maximum 
of EUR 2 770 is to be recognised as prior income (Article 2(3)). 

The parental pay is referred to as ‘basic parental pay’ if it is indeed only paid out during 
the first 12/14 months of the child’s life. Usually, this option is chosen when parents do 
not have any income during the time, they receive parental pay (i.e. are on full-time leave) 
and plan to return to work afterwards. 

However, it is also possible to halve the monthly amount of the basic  parental pay and 
extend  the  period  of  pay  within  the  scope  of  ‘parental  pay  plus’.  Parental  pay  plus  is 
calculated just as the outlined above, but is then halved (maximum),  meaning that the 
maximum that is paid out is half of the basic parental pay, calculated on the assumption 
that there is no income during the leave period. The amount is paid for twice as long. 

357  The minimum allowances are not awarded to every parent, because parental allowances are offset against 

unemployment assistance and social assistance, which means in practice that parents receiving 
unemployment or social assistance do not get any parental allowances. 

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This is attractive if periods of payment are intended to be prolonged or if parents want to 
work part-time while on leave. 

If all of the money is paid out as a basic parental pay within the first 12 months, working 
part-time is not very attractive, because it seriously reduces the amount of parental pay. 
Parents only receive parental pay for the difference between current and prior income and 
the absolute period of pay will be the same. 

However, parental pay plus is paid for twice as long. Moreover, parental pay plus is only 
limited by the absolute maximum (half of basic parental pay taking into account the whole 
income). As such, if the current income is less than 50 % of the previous income, the total 
amount of parental pay plus is not reduced (see calculation below). Parents thus receive 
the same total amount of parental pay but over a longer period of time. 

If both parents work 4 months part-time (between 24 and 32 hours a week) they receive 
4  additional  parental  pay  plus  months  (  ‘partnership  bonus’).  There  is  thus  also  some 
encouragement to organise responsibilities equally and return to work. 

In comparison see this example taken from the government website:358 

If  there  is  no  income  during  the  pay  period,  the  parental  pay  plus  simply  prolongs  the 
payment while the overall amount is the same: 

Net income prior to birth 
Net income after birth 
Difference in income 
Basic parental pay (65 % of the difference) (for 12 
months) 
Half of that (‘absolute max’) 
Parental pay plus (for 24 months) 
Absolute amount basic parental pay 
Absolute amount parental pay plus 

EUR 2 000 per month 
EUR 0 per month 
EUR 2 000 per month 
EUR 1 300 per month 

EUR 650 per month 
EUR 650 per month 
EUR 15 600 
EUR 15 600 

However, if there is some part-time income during the leave it looks very different, and 
parental pay plus can provide real benefits. 

EUR 2 000 per month 
EUR 500 per month 
EUR 1 500 per month 
EUR 975 per month 
EUR 1 300 per month 

Net income prior to birth 
Net income after birth 
Difference in income 
Basic parental pay (65 % of the difference) 
Theoretical possible basic parental pay without 
income after birth (65 % of EUR 2 000) 
Half of that (‘absolute max’) 
Parental pay plus 
Because the basic parental pay of the difference (EUR 975) is higher than the absolute 
max (EUR 650), the parental pay plus is reduced. But because it is paid for twice as 
long, the overall amount is much higher. 
Basic parental pay (if there is part-time 
income) for max of 12 months 
(12 x EUR 975) 
Parental pay plus (if there is part-time 
income) for max of 24 months 
(24 x EUR 650) 

EUR 650 per month 
EUR 650 per month 

EUR 11 700 

EUR 15 600 

358  See: Wie viel Elterngeld kann ich bekommen? | Familienportal des Bundes. 

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The 12 calendar months before the calendar month of the birth of the child are decisive to 
determine the employee’s previous income before the birth. Gaps within that time due to 
e.g.  receiving  the  parental  allowance  are  not  included  in  the  calculation.  Special 
arrangements are in place, taking into account the COVID-19 pandemic. If the income was 
reduced because of the pandemic (e.g. furlough schemes), the periods (1 March 2020-23 
September 2022) are not taken into account to assess the income prior to birth. If parents 
worked fewer hours or were unable to work part-time due to the pandemic they do not 
lose their partnership bonus either.359 

The  calculation  based  on  net  income  is  somewhat  of  an  abnormality.  In  comparison, 
payments in the case of illness amount to 70 % of the gross income with a maximum of 
90 %  of  the  net  income.  The  focus  on  net  income  regarding  parental  pay  has  been 
criticised as it is rather complex and makes it difficult to integrate other payments (such 
as paternity payments) within the same system. 

5.8.9  Case law 

Unsurprisingly,  various  disputes  concerning  the  correct  calculation  of  the  parental 
allowance have reached the highest courts. The Federal Social Court (Bundessozialgericht) 
decided  that  salary  arrears  can  increase  the  parental  allowance.360  If  the  wage  tax 
classification  (filing  class)  changed  repeatedly  within  the  period  relevant  for  the 
determination  of  the  allowance,  the  longest  valid  tax  bracket  is  relevant.361  Lump-sum 
taxed one-off payments will not be considered in the calculation of the allowance.362 The 
Higher  Labour  Court  Nürnberg  held  that  employers  are  liable  for  the  damage,  if  late 
payments of remuneration leads to a reduction in the entitlement to parental allowance 
due to statutory provisions. The case concerned payments that were only received after a 
legal dispute and were so late that they were taxed as ‘other income’ which is not included 
in the calculation of the allowance.363 

Section 17(1) and (2) of the Act on Parental Allowance and Leave regulate the entitlements 
to  annual  leave  that  are  lex  specialis  to  the  Federal  Act  on  Annual  Leave 
(Bundesurlaubsgesetz). Accordingly, the employer may reduce the leave entitlement by 
one twelfth in writing for each full calendar month of parental leave. Residual leave that 
was not taken at the beginning of parental leave can be taken after parental leave in the 
current  or  next  holiday  year.  The  Federal  Labour  Court  has  now  confirmed  that 
corresponding vacation days that have not been (effectively) reduced, can be taken in the 
following year, regardless of any exclusion clauses in the employment contract.364 

The Federal Labour Court has also confirmed that a written rejection of part-time parental 
leave  because  of  urgent  occupational  reasons  within  the  context  of  Section 15(7)  limits 
the reasons an employer can refer to in any potential future court hearing. As such, only 
the written reasons for the rejections can be used to justify the rejection.365 The rejection 
must  be  provided  in  writing  within  the  strict  meaning  of  the  law.  As  such,  it  requires  a 
signature.366 

359  Maßnahmen im Elterngeld aus Anlass der COVID-19-Pandemie, 

www.bmfsfj.de/resource/blob/185428/cfce053580c88d0a7b47436ad0707d71/elterngeld-und-elternzeit-24-
auflage-einleger-data.pdf. . 

360  Federal Social Court, judgment of 27. June 2019, B 10 EG 1/18 R. 
361  Federal Social Court, judgment of 28. March 2019, B 10 EG 8/17 R. 
362  Federal Social Court, judgment of 08. March 2018, B 10 EG 8/16 R. 
363  Higher Labour Court Nürnberg, judgment of 20. January 2021, 2 Sa 253/20. 
364  Federal Labour Court, judgment of 05. July 2022, 9 AZR 341/21. 
365  Federal Labour Court, judgment of 11. December 2018, 9 AZR 298/18. 
366  Federal Labour Court, judgment of 27. June 2017, 9 AZR 368/16. 

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5.8.10 Table on parental leave 

Table 5: Parental leave 

Duration 
and 
period 

Possibility 
to share 
parental 
leave? 

3 years/ 
32 
months. 

No, leave is 
non-
transferable. 

Flexibility 
(e.g. full-
time, part-
time, 
piecemeal?) 
Full-time. 
Part-time. 
Combination of 
both. 

Qualifying 
conditions 
for payment 
or 
allowance? 
No. 

Payment or 
allowance? 

Allowance. 
14 months of parental 
pay in total if both 
parents take at least 2 
months of leave/pay 
(otherwise 12 months). 
Maternity pay is 
deducted. Additional 
variations are available 
if part-time leave/pay is 
taken. Additional 
months of part-time pay 
are available if both 
parent work a minimum 
of hours. 

  Carers’ leave367 

5.9.1  Carers’  (or  care)  leave  in  national  law  (Articles  3(1)(c),  (d)  and  (e)  and  6  WLB 

Directive) 

Germany provides for carers’ leave to take care of close relatives in need of care including 
the care of a close relative under the age of 18 and end-of-life care of a close relative. 

On  1  January  2015,  the  Act  on  the  better  reconciliation  of  family,  home  care  and  work 
(Gesetz zur besseren Vereinbarkeit von Familie, Pflege und Beruf)368 entered into force. It 
covers several amendments to the 2008 Home Care Leave Act (Pflegezeitgesetz, PflZG)369 
and the 2012 Family Home Care Leave Act (Familienpflegezeitgesetz, FamPflZG).370 The 
laws provided for emergency care leave for up to 10 working days and part-time or full-
time home care leave for up to 6 months. Further, the laws  provided for a reduction of 
working time to no less than 15 hours per week, in agreement with the employer, for up 
to 2 years to care for a close relative in need of home care. This can include grandparents, 
parents,  step-parents,  spouses,  civil  partners  and  partners  in  a  marriage-like  or  civil 
partnership-like community, siblings, children, adopted and foster children (own or of the 
life  partner),  grandchildren,  sisters-in-law  and  brothers-in-law,  parents-in-law  and 
children-in-law. The entitlement to part-time or full-time (home) care leave is extended 
to care leave for a close relative under the age of 18 for up to 6 months whether in need 
of care or home care, and to end-of-life care of a close relative for up to 3 months. The 
entitlement to family home care leave by reducing working time is extended to care leave 
for close relatives who are minors for up to 24 months. 

367  See De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-
transposition-of-the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead. 

368  More information available at: http://www.wege-zur-pflege.de/neu-seit-112015.html. 
369  Gesetz über die Pflegezeit (Pflegezeitgesetz) of 28 May 2008, Official Journal (Bundesgesetzblatt BGBl), 

part I p. 874, 896, http://www.gesetze-im-internet.de/pflegezg/BJNR089600008.html. 

370  Gesetz über die Familienpflegezeit (Familienpflegezeitgesetz, FPfZG) of 6 December 2011, Official Journal 
(Bundesgesetzblatt BGBl), part I p. 2564, http://www.gesetze-im-internet.de/fpfzg/BJNR256410011.html. 

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Employees must prove that their close relative is in need of care by submitting a certificate 
from  the  long-term  care  insurance  fund  or  the  medical  service  of  the  health  insurance 
company. Generally, the care has to take place in the home environment. However, in the 
case  of  minor  close  relatives  in  need  of  care,  there  is  also  an  entitlement  to  leave  of 
absence if care is provided outside the home environment. 

The  right  to  leave  is  only  available  for  employees  of  bigger  employers.  The  Home  Care 
Leave Act requires more than 15 employees and the Family Home Care Leave Act refers 
to more than 25 employees. The 12/2022 Act implementing parts of the Work-Life Balance 
Directive  amended  the  scope  of  these  Acts  slightly  to  include  small  and  medium-size 
employers.  Section 2a(5a)  Family  Home  Care  Leave  Act  provides  that  employees  of 
employers  with  generally  25  or  fewer  employees  may  apply  to  their  employer  for  the 
conclusion of an agreement on family caregiver leave. The employer must respond to the 
application within four weeks of receipt. Reasons are to be given for any rejection of the 
application.  Section 3(6a)  Home  Care  Leave  Act  applies  similar  requirements  under  its 
scope for employers with generally 15 or fewer employees. An entitlement to leave does 
not exist. 

Many of the rules have been relaxed in the context of COVID-19. This includes different 
formality requirements and more flexibility regarding the way the leave periods are taken, 
e.g. they do not have to be taken in a row. These rules expire on 30 April 2023. 

5.9.2  Payment or allowance 

Employees  on  care  or  family  care  leave  do  not  receive  payments  of  remuneration  or  a 
state-funded allowance during the leave. 

Employees can apply for an interest-free loan from the Federal Office for Family and Civil 
Society Tasks to compensate for the loss of income during the  care leave or family care 
leave. The maximum amount of the loan covers the difference in net income before and 
during the leave period. The minimum amounts to EUR 50 a month. After the end of the 
care period, the loan must be repaid in instalments (Section 3 Family Home Care Leave 
Act). 

Relatives who need time to organise an acute care situation can be absent from work for 
up to 10 working days. Since 1 January 2015, this has been associated with an entitlement 
to a wage replacement benefit, the long-term care support allowance. It amounts to 90 % 
of  the  lost  net  salary  or  100 %  in  the  case  of  one-off  payments  and  is  covered  by  the 
statutory long-term care insurance of the close relative. 

Employees  may  also  be  able  to  benefit  from  working-life  time  accounts  (Wertguthaben 
which is a long-term work account) (Section 7b to 7d Fourth book of the Social Security 
Code, SGB IV) in order to mitigate the loss of income. This can enable them to top up their 
remuneration  with  a  credit  balance  which  can  be  built  up  before  or  after  the  leave.  As 
such, employees reduce their income prior or after the care leave, to cover the time of the 
leave. The aim of a credit balance is to finance a longer-term leave of absence protected 
by social security law,  e.g. for care leave, parental leave,  early  retirement or part-time 
work,  from  the  employee’s  income.  It  requires  a  written  credit  agreement  between 
employee and employer. Company agreements or  collective bargaining agreements  can 
be concluded. Section 7d of Social Code No. 4 requires insolvency protection of working-
life time accounts. 

Under Section 45 Fifth Code of Social Law one insured parent is also entitled to sickness 
benefit if they are absent from work in order to supervise or care for their sick and insured 
child,  provided  that  the  child  has  not  yet  reached  the  age  of  12  or  is  disabled  and 
dependent on assistance and, according to a medical certificate, suffers from an illness, 
a) which is progressive and has already reached a very advanced stage, b) where a cure 

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is excluded and palliative care is necessary or desired by a parent, and c) which can only 
be expected to have a limited life expectancy of weeks or a few months. 

5.9.3  Case law 

There is limited case law available. 

The Federal Labour Court has confirmed that the six months’ leave under the Home Care 
Leave Act only gives the employee the opportunity to take care leave for up to six months 
by means of a one-time declaration. If the employee has taken care leave shorter than six 
months  by  declaration  to  the  employer,  they  are  prevented  from  exercising  their  right 
again,  provided  that  the  care  leave  relates  to  the  same  relative  (one-time  right  of 
arrangement).371 The law however allows for an extension of the original leave period with 
consent  of  the  employer.  The  court  also  did  not  decide  on  the  possibility  of  a  one-time 
declaration that splits the six months period into separate periods. 

5.9.4  Table on carers’ leave 

Table 6: Carers’ leave 

Purpose(s) 
of leave 

Care 

Maximum 
period of 
leave 
6 months 
full-time. 
24 months 
part-time. 

Other relevant 
information 

The right to 
leave depends 
on the size of 
the business 
(number of 
employees). 
Small and 
medium 
employers 
(fewer than 
15/25 
employees) are 
not obliged to 
provide leave 
but employees 
have a right to 
request it. 

Compensation?  Beneficiaries 

Via insurance or 
10 days in 
relation to acute 
care situation. 

Interest-free 
loan. 

(persons taken 
care of) 
Section 7(3) Home 
Care Leave Act: 

1.  Grandparents, 

parents, in-laws, 
step-parents; 
2.  Spouses, civil 
partners, 
partners in a 
cohabitation 
similar to 
marriage or civil 
partnership, 
siblings, spouses 
of siblings and 
siblings of 
spouses, civil 
partners of 
siblings and 
siblings of civil 
partners; 
3.  Children, 

adopted or foster 
children, the 
children, adopted 
or foster children 
of the spouse or 
partner, children-
in-law and 
grandchildren. 

371  Federal Labour Court, judgment of 15 November 2011, 9 AZR 348/10. 

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 Time off for force majeure372 

5.10.1 Time off for force majeure (Article 7 WLB Directive) 

Contract law reference unreasonableness (unzumutbar). Section 275(3) Civil Code (BGB) 
allows for the denial of performance if it is unreasonable to insist on performance and the 
performance has to be provided personally. Work within employment must be performed 
personally  (Section 613  Civil  Code).  This  section  will  regularly  apply  in  force  majeure 
situations,  especially  if  they  relate  to  emergency  short-term  care  as  it  would  be 
unreasonable to expect the employee to work while this emergency situation persists. 

More specifically ad hoc leave entitlements are concerned with urgent family reasons and 
relate to illness of children under the age of 12 and  situations requiring acute care of a 
close  relative.  They  are  paid  by  the  health  insurance  or  care  insurance  if  relevant.  The 
right to leave is independent from the right to sickness benefits or care support allowance. 

Section 45(3) in conjunction with 45(1) Code of Social Law V refers to the specific situation 
that is concerned with the care of an ill child younger than 12 years old or a disabled child 
who requires help. This includes sickness pay (10 working days per year) and unpaid leave. 
Overall,  it  refers  to  10  working  days  for  each  child  per  calendar  year,  with  an  absolute 
maximum of 25 days. The time is doubled for single parents. The current Government’s 
coalition agreement suggests an increase to 15 days per child and parent or 30 days for 
single parents. Only insured persons are entitled to sickness benefits, but the entitlement 
to leave is independent from the insurance status. 

These  entitlements  underwent  various  changes  within  the  context  of  the  COVID-19 
pandemic as an additional subsection 2a was added. According to the latest change within 
the relevant period, the entitlements for the year 2020 included 15 working days for each 
child (30 days for single parents) with an absolute maximum of 35 working days (70 for 
single parents).373 For the years 2021 and 2022, the right has been further extended to 
30 working days for each child (for single parents, 60 working days) with a maximum of 
65  working  days  (single  parent,  130  working  days).374  Up  until  23  September  2022, 
parents were entitled to up to 10 weeks off work (20 weeks for single parents) if childcare 
facilities are closed in the context of COVID-19. They receive 67 % of their loss in pay. 
The  provisions  are  considered  to  help  women  stay  in  employment  while  taking  on 
additional childcare requirements due to COVID-19. 

Section 2(1) Home Care Leave Act entitles employees to be absent from work for up to 10 
working days if this is necessary in order to organise needs-based care for a close relative 
in need of care in an acute care situation or to ensure nursing care during this time. During 
the time of leave the employer is only obliged to continue to pay the remuneration if such 
an  obligation  arises  from  other  statutory  provisions  or  on  the  basis  of  an  agreement. 
Employees  are  entitled  to  payment  of  care  support  allowance  in  accordance  with 
Section 44a(3) of the Eleventh Book of the Social Code. The long-term care insurance fund 
or the insurance company of the person in need of care is responsible for the payment of 
the long-term care support allowance. ‘In need of care’ is specifically defined in the  Act 
and related to long-term conditions. However, under Section 2(1) the care status of the 
relative does not have to be confirmed but only needs to be likely. 

372  See De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-
transposition-of-the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead. 

373  Act on the future of hospitals (Krankenhauszukunftsgesetz) Act of 23 October 2020, Official Journal 2020 

(BGBl. I no 45), p. 2208. 

374  Fourth Act on the Protection of the Population in an Epidemic Situation of National Importance (Vierte 

Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite), 22 April 2021 
Official Journal 2021 (BGBl I no 18) p. 802. 

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By way of derogation from Section 2(1), employees have the right to be absent from work 
for up to 20 working days in the period from 29 October 2020 up to and including 30 April 
2023 if the acute care situation has arisen due to the COVID-19 pandemic. The connection 
is assumed. 

5.10.2 Case law 

In  2016,  the  State  Labour  Court  of  Rhineland-Palatinate  held  that  a  dismissal  by  the 
employer  on  the  grounds  of  exercising  the  right  to  be  absent  from  work  under  the 
conditions of Section 45 of Social Code No. 5 constitutes unlawful victimisation.375 Such a 
dismissal  would  be  invalid  as,  in  the  event  of  unlawful  refusal,  the  entitlement  to 
emergency care leave includes the right to remain absent from work without authorisation. 

5.10.3 Table on time off for force majeure 

Table 7: Time off for force majeure 

Maximum 
period of 
time off 
10 days. 

10 days. 

Purpose of time 
off 

Care of ill children. 

Organise care/ 
ensure care for a 
close relative in an 
acute care 
situation. 

Compensation?  Other relevant information 

Yes, via 
insurance. 

Ad hoc leave under the Home 
Care Leave Act was extended 
to 20 days in the context of 
COVID-19 (until 30 April 
2023). 

 Flexible working time arrangements (FWA)376 

A  recent  study  shows  that  the  desire  for  the  option  to  reduce  working  hours  (which  is 
hampered by operational reasons, fear of severe financial losses, lack of culture of male 
employees working part-time, etc.) is grossly underrated by the biased design of actual 
surveys.377 

Provisions  on  flexible  work,  part-time  work,  remote  working,  telework  and  mobile  work 
include: 

- 

Section 16  BGleiG  –  Gesetz  für  die  Gleichstellung  von  Frauen  und  Männern  in  der 
Bundesverwaltung und in den Gerichten des Bundes (Act on Gender Equality in the 
Federal Administration and in the Federal Courts). 

Examples of law of the Laender: 

- 

Hessen: § 14 HGlG, Hessisches Gesetz über die Gleichberechtigung von Frauen und 
Männern  und  zum  Abbau  von  Diskriminierungen  von  Frauen  in  der  öffentlichen 
Verwaltung (Hessisches Gleichberechtigungsgesetz - HGlG) – (Hessian Act on Equal 
Rights for Women and Men and on the Reduction of Discrimination against Women 
in Public Administration (Hessian Equal Rights Act - HGlG). 

375  State Labour Court of Rhineland-Palatinate, judgment of 8 November 2016, 8 Sa 152/16, nevertheless 

confirming the validity of the dismissal because the applicant was still on probation.  

376  See De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-
transposition-of-the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead.  

377  Holst, E. & Bringmann, J. (2016), Arbeitszeitrealitäten und Arbeitszeitwünsche in Deutschland (Realities of 

working time and wishes regarding working time in Germany), DIW: Berlin. 

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- 

Niedersachen:  Niedersächsisches  Gleichberechtigungsgesetz  (Lower  Saxony  Equal 
Rights Act) (planned reform).378 

On  11 December  2018,  the  Act  on  the  further  development  of  part-time  work – 
introduction of bridge part-time work was passed by the Bundestag, amending the Part-
Time and Fixed-Term Employment Act (see Section 5.10 below), and entering into force 
on 1 January 2019.379 

5.11.1 Right to adjust working patterns (Article 3(1)(f) and 9 WLB Directive) 

German law has primarily focused on the right to reduce working time to accommodate 
domestic care responsibilities as outlined below. 

According to Section 7(2) of the amended Part-Time and Fixed-Term Employment Act, the 
employer is obliged to discuss an employee’s wish to change the duration and/or situation 
of the existing contractual working time. This obligation applies regardless of the amount 
of working time and the number of employees in the company. 

Generally, working patterns are subject to collective and works agreements. Associations 
of employers as well as employees have a vital interest in furthering a work-life balance 
by  regulations  in  collective  agreements.  Moreover,  working  time  (starting  and  finishing 
hours,  breaks,  location  and  distribution,  changes  in  weekly  working  time,  holidays)  is 
subject to genuine co-determination by the works councils under Section 87(1), (2), (3) 
and (5) of the Works Constitution Act. Thus, 90 % of the collective and 13 % of the works 
agreements cover measures to further work-life balance.380 Some of the agreements deal 
with the details of taking parental leave only, while others cover a wide range of measures 
from  part-time  work,  teleworking,  job  sharing,  flexi-time,  work  schedules,  core  times, 
‘reduced full time’ (80 %), holiday balances, sabbaticals, in-house childcare, and all kinds 
of care leave, up to various models of working time accounts. It goes without saying that 
these  arrangements  are  also  used  to  attract  applicants.  The  available  opportunities  are 
widely  used,  especially  since  COVID-19.  However,  operational  conditions  are  the  most 
important factors for the use or inability to use different options of arranging and adjusting 
working  times  –  while  parental  leave  and  temporary  leave  are  generally  accepted, 
reductions  or  increases  of  working  time  are  far  more  difficult  to  achieve,  especially 
depending on sex/gender and the position within the organisational hierarchy.381 

There is also no statutory entitlement to work from home or remotely. Since November 
2016,  the  amended  Workplace  Ordinance382  legally  acknowledges  the  possibility  of 
‘teleworking’  (Telearbeit),  meaning  working  from  home,  and  further  states  that  general 
regulations upon safety and health and data protection are to be applied.383 In the absence 
of statutory regulations, working from home or remotely is subject to collective and works 
agreements.  Due  to  the  digitalisation  of  working  life,  there  are  more  and  more  such 

378  See: Niedersächsisches Gleichberechtigungsgesetz (NGG) | Nds. Ministerium für Soziales, Arbeit, Gesundheit 

und Gleichstellung (niedersachsen.de). 

379  Act on the further development of part-time work – introduction of bridge part-time work of 11 December 
2018, Official Journal 2018, p. 2384, https://www.bmas.de/DE/Service/Gesetze/brueckenteilzeit.html.  
380  Klenner, C., Brehmer, W., Plegge, M., Bohulskyy, Y. (2013), Förderung der Vereinbarkeit von Familie und 
Beruf in Tarifverträgen und Betriebsvereinbarungen in Deutschland (Reconciliation of family and working 
life in collective and works agreements in Germany), https://www.boeckler.de/fpdf/HBS-
005513/p_wsi_disp_184.pdf.  

381  Klenner, C. and Lott, Y. (2016), Arbeitszeitoptionen im Lebensverlauf. Bedingungen und Barrieren ihrer 

Nutzung im Betrieb (Working time options in the life course. Conditions and barriers for their realisation in 
the company), WSI: Düsseldorf.  

382  Federal Workplace Ordinance of 12 August 2004 (Arbeitsstättenverordnung), https://www.gesetze-im-

internet.de/arbst_ttv_2004/BJNR217910004.html.  

383  See Wissenschaftliche Dienste des Bundestages (2017), Telearbeit und Mobiles Arbeiten. Voraussetzungen, 
Merkmale und rechtliche Rahmenbedingungen (Teleworking and mobile working – Requirements, definitions 
and legal framework), 
https://www.bundestag.de/resource/blob/516470/3a2134679f90bd45dc12dbef26049977/WD-6-149-16-
pdf-data.pdf.  

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agreements.  It  has  to  be  noted,  however,  that  there  are  problems  with  rejections  of 
requests to work  from  home or remotely on the  one hand and, on the  other, problems 
with  certain  pressures  that  employers  put  on  their  employees  to  work  from  home. 384 
Working from home can further the reconciliation of work with family life for employees 
but  it  can  be  used  by  employers  who  wish  to  evade  their  obligations  of  maintaining  an 
appropriately  equipped,  safe  and  healthy  workplace  as  well.  The  current  Government’s 
coalition agreement states that a right to home office will be introduced. 

Administrative law goes beyond employment law. 

Under Section 16 of the Federal Equality Act, federal public employers are obliged to offer 
family-friendly  working  hours  and  to  comply  with  the  wishes  of  employees  performing 
family or care tasks for family or care-related part-time employment or leave of absence, 
insofar  as  this  is  not  contrary  to  mandatory  official  requirements.  This  also  applies  to 
workplaces with supervisory or management tasks, irrespective of the hierarchical level. 
As far as possible, the department must also offer teleworking jobs, mobile workplaces or 
family-friendly or care-friendly work and attendance models. Rejection of applications for 
telework  or  mobile  working  must  be  justified  in  detail  in  writing.  This  is  a  regulation  to 
further the reconciliation of work and family but the possibility to apply385 for work from 
home or remotely only covers the very small group of federal civil servants, not the vast 
majority of civil servants of the states (Länder) or employees under private employment 
contracts.  However,  state  laws  on  the  public  administration  may  include  similar 
entitlements. See for example, Section 14 Hessian Law on Equal Rights for Women and 
Men  and  on  the  Reduction  of  Discrimination  against  Women  in  Public  Administration 
(Hessisches Gesetz über die Gleichberechtigung von Frauen und Männern und zum Abbau 
von Diskriminierungen von Frauen in der öffentlichen Verwaltung). 

There are various rights to reduce working time, either temporarily or permanently. 

As outlined above, parental leave can be taken part-time. A request can only be denied 
due to urgent opposing operational reasons under  Section 15(7) of the Federal Parental 
Leave  and  Parental  Allowances  Act,  if  the  employer  generally  employs  more  than  15 
employees. The 2008 Home Care Leave Act (Pflegezeitgesetz, PflZG) and the 2012 Family 
Home  Care  Leave  Act  (Familienpflegezeitgesetz,  FamPflZG)  also  allow  temporary  part-
time and full-time leave. The possibility to take these periods of leave are considered as 
flexibility measures within the meaning of Article 9 of the Directive. 

Beyond that,  German law provides workers  with legal  rights to reduce working time on 
request. 

Civil  servants  can  request  a  reduction  of  at  least  one  half  of  the  regular  working  time 
without  further  conditions  under  Sections 72a-72d  of  the  Federal  Civil  Service  Act 
(Bundesbeamtengesetz, BBG) or under the states’ civil service legislation unless there are 
opposing operational reasons. The request for part-time work due to family responsibilities 
(care for children under the age of 18 or dependent relatives) can only be refused due to 
urgent opposing operational reasons. A caring civil servant is entitled to a reduction of less 
than one half of the regular working time for a period of up to 12 years. 

384  These topics are broadly discussed among employers, employees, union, labour lawyers, media and others, 
example given at: https://www.dgb.de/themen/++co++08975c98-53f8-11e6-bd89-525400e5a74a, and 
the State Labour Court of Berlin and Brandenburg, judgment of 10 October 2018, 17 Sa 562/18, takes up 
some of these arguments. 

385  The possibility to apply under the Federal Equality Act does not mean an individual right to work from 

home, see Federal Administrative Court, judgment of 31 January 2008, 2 C 31/06.  

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Employees may request a reduction of their working time under Section 8 of the Part-Time 
and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz).386 The law applies to 
the private and the public sector and to all employees except civil servants. It has to be 
noted  that  care  duties  are  no  requirement  for  the  entitlement  to  temporary  part-time 
work; the employee is not expected to give any reason for their wish to reduce working 
time but must request the reduction in writing at least three months in advance. 

The qualifying period is six months, meaning that the employee has been employed for 
that  time  prior  to  the  request  to  reduce  working  time.  Moreover,  the  employer  has  to 
generally employ more than 15 persons. 

Section 9  also  enables  part-time  workers  to  request  an  increase  of  working  time.  The 
employer  must  give  preferential  consideration  to  such  requests,  unless  (1)  there  is  no 
corresponding  vacant  job  or  (2)  the  part-time  employee  is  not  at  least  as  suitable  as 
another  applicant  preferred  by  the  employer  or  (3)  there  are  working  time  requests  of 
other part-time employees or (4) urgent operational reasons. This does not amount to a 
right to extend working time on request or to work full time. 

Since  2018,387  Section 9a  of  the  amended  Part-Time  and  Fixed-Term  Employment  Act 
enables employees to reduce their working time. They can demand that their contractually 
agreed working time be reduced for a period to be determined in advance. The desired 
period must be at least one year and at most five years. The conditions for a reduction are 
that the employer employs more than 45 persons, there has been a period of service for 
more than six months and there are no opposing operational reasons. 

This new provision aims at improving the situation of persons (mostly female) who reduce 
their working time due to the upbringing of children or necessary care work for relatives 
and then face the problem of having no chance to return to full-time work or to extend 
their working time. 

5.11.2 Relative right (Article 9(2) WLB Directive) to FWA 

The right to working time reduction or the right to preferential treatment  in the case of 
increase  of  working  time  is  not  relative  but  employers  can  reject  it  based  on  specific 
reasons (see 5.11.3.). The request  as well as the employer’s decision  must be made in 
text  form.  If  the  employer  and  employee  have  not  agreed  on  the  reduction  of  working 
hours and the employer has not rejected the reduction in working hours in text form at 
least  one  month  before  the  desired  start  date,  the  working  time  will  be  reduced  to  the 
extent desired by the employee (Section 8(5)). 

Moreover, the right to discuss duration and/or situation of the existing contractually agreed 
working time (Section 7(2) of the Part-Time and Fixed-Term Employment Act) is relative. 
The employee may call in a member of the employee representative body for support or 
mediation.  In  addition,  the  employer  must  inform  the  employee  representatives  of  any 
request for changes in working time that has been notified. 

The right to part-time or full-time care leave under the Home Care Leave Act and Family 
Home  Care  Leave  Act  depends  on  the  size  of  the  employer.  Employees  of  smaller 
employers have a right to request leave, but they are not entitled to leave (see 5.9). Part-
time parental leave has to be agreed upon (Section 15(5)), but the right goes beyond a 
right to request, because in practice employers’ rejection has to be substantiated with due 
reasons (see 5.8). 

386  Part-Time and Fixed-Term Employment Act of 21 December 2000, Official Journal 2000, p. 1966, 

https://www.gesetze-im-internet.de/tzbfg/BJNR196610000.html.  

387  Act on the further development of part-time work – introduction of bridge part-time work of 11 December 
2018, Official Journal 2018, p. 2384, https://www.bmas.de/DE/Service/Gesetze/brueckenteilzeit.html.  

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5.11.3 Absolute right to FWA 

The Home Care Leave Act and Family Home Care Leave Act provide an absolute right to 
part-time care leave for employers with more than 15 or 25 employees respectively. The 
right  to  part-time  parental  leave  can  only  be  rejected  because  of  urgent  operational 
reasons if the employer employs more than 15 employees. 

Under  the  Part-Time  and  Fixed-Term  Employment  Act,  employees  have  the  right  to 
working time reduction, temporary working time reduction or preferential treatment in the 
case of working time increase. Employers can only reject a request for specific reasons. 

Section 8(4) states that the employer must agree to the reduction in working hours and 
determine their distribution in accordance with the wishes of the employee, provided that 
there are no operational reasons for rejection. An operational reason exists in particular if 
the  reduction  in  working  hours  significantly  impairs  the  organisation,  the  workflow  or 
safety in the company or causes disproportionate costs. The reasons for refusal may be 
determined  by  collective  agreement.  Within  the  scope  of  such  a  collective  agreement, 
employers and employees who are not bound by collective agreements may agree on the 
application of the collective bargaining rules on the grounds for refusal. 

Within the context of temporary working time reduction, the employer can also reject a 
request  if  there  are  already  a  number  of  other  employees  with  temporary  part-time 
arrangements if they usually have between 45 and 200 employees. How many employees 
have to already have used the arrangements depends on the size of the employer and is 
progressive. For example, an employer that has 45 to 60 employees only has to allow at 
least 4 employees to use the option of temporary work reduction. An employer with 195 
to 200 employees has to allow at least 14 employees to do the same. 

Section 9  provides  for  an  entitlement  of  employees  working  part-time  to  be  given 
preferential consideration by the employer when filling a vacant or newly created position. 
In  advance,  the  employee  has  to  notify  the  employer  of  their  wish  to  extend  the 
contractually agreed working time. Preferential consideration is to be given unless it is not 
a corresponding vacant job, or the part-time employee is not at least as suitable as another 
candidate preferred by the employer, or there are working time requests by other part-
time employees or there are urgent operational reasons to the contrary. For each of these 
obstacles to preferable consideration, the employer bears the burden of proof. 

5.11.4 Duration (Article 9(1) and (3) WLB Directive) of FWA 

As  outlined  above,  part-time  carers’  leave  is  limited  to  24  months  (5.9).  Parental  part-
time leave can be rejected based on urgent operational reasons (5.8). However, reduction 
of working time under the Part-Time and Fixed-Term Employment Act can be requested 
without  reference  to  any  reason  and  changes  the  contract  permanently,  unless  only  a 
temporary  reduction  is  agreed  upon.  There  are  no  legal  rights  to  flexible  work 
arrangements or working from home. 

Whether  carers  can  return  their  original  contractual  conditions  early  depends  on  the 
circumstances. Section 16(3) of the Act on Parental Allowance and Parental Leave allows 
for  an  early  return  with  consent  of  the  employer.  However,  in  the  case  of  the  birth  of 
another  child  or  in  cases  of  particular  hardship  (e.g.  serious  illness,  severe  disability  or 
death  of  a  parent  or  a  child  or  in  the  event  of  a  significantly  endangered  economic 
existence  of  the  parents)  employers  may  only  reject  the  request  in  writing  within  four 
weeks for urgent operational reasons. Parental leave can also be terminated prematurely 
to make use of the protection periods of the Maternity Protection Act. Parental leave ends 
three weeks after the death of the child. 

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According to Section 4(2) Home Care Act the care leave period ends four weeks after the 
need  for  home  care  ends  or  becomes  impossible.  Otherwise,  early  return  from  leave 
depends on the employer’s consent. See also Section 2a(5) Family Home Care Leave Act. 

Section 9a of the Part-Time and Fixed-Term Employment Act on temporary part-time work 
does not foresee any early return to full-time work. 

5.11.5 Other legal rights to flexible working arrangements 

Section 6 of the Part-Time and Fixed-Term Employment Act encourages employers to offer 
possibilities  for  part-time  work  and  explicitly  mentions  workers  in  higher  management 
positions. Possibilities for individually agreed job sharing are covered by Section 13 of the 
Act. 

5.11.6 Case law 

On 10 October 2018, the State Labour Court of Berlin and Brandenburg decided that the 
employer is not entitled to oblige the employee to work from home solely because of the 
employer’s  general  right  to  issue  instructions  under  the  employment  contract.388  If  the 
employee  refuses  to  carry  out  work  from  home,  this  cannot  be  considered  to  be  a 
persistent  refusal  to  work.  A  dismissal  for  this  reason  is  therefore  invalid.  The  Court 
explained that the circumstances of work to be carried out exclusively in one’s own home 
could not be compared with work to be carried out in a permanent establishment together 
with other employees of the same company. The employee would lose direct contact with 
his colleagues, and the opportunity to exchange information with them was significantly 
reduced.  The  boundaries  between  working  time  and  free  time  would  become  fluid.  The 
employee would be more difficult to reach for the works council as well as the trade unions 
represented in the company. The fact that employees could nevertheless be interested in 
working from home, e.g. to better reconcile family and career, did not change the fact that 
this  form  of  work  could  not  generally  be  assigned  to  an  employee  unilaterally  by  the 
employer. The Higher Labour Court Munich confirmed that vice versa, the employer can 
require the employee to return to the office.389 The employer was allowed to redetermine 
the place of work by instruction, while maintaining equitable discretion, if the place was 
not determined by  contract  or other  legal arrangements. Indeed, the  COVID-19-related 
‘stay at home orders’ did not amount to an individual right to home office either. 

In 2021, the Labour Court of Cologne confirmed that in principle, there is no obligation on 
the part of the employer to offer a job in a home office or mobile office in the event of a 
dismissal  with  the  option  of  altered  conditions  of  employment  due  to  relocation.390  The 
Court especially highlighted that there has never been a legal right to home office, even 
in the context of COVID-19, and that political proposals to introduce such right have failed 
within the legislative process.  The Court distinguished this  from  extraordinary dismissal 
for operational reasons, in which case the Federal Labour Court did agree that a relocation 
to  the  home  office  should  be  considered.391  The  State  Labour  Court  of  Berlin  and 
Brandenburg held that the offer of a home office workplace cannot be a milder measure 
in the context of a dismissal with the option of altered conditions, at least if it is part of 
the  entrepreneurial  decision  to  concentrate  certain  workplaces  at  the  employer’s 
headquarters and not to offer the possibility to work remotely.392 

388  State Labour Court of Berlin and Brandenburg, judgment of 10 October 2018, 17 Sa 562/18.  
389  Higher Labour Court Munich, judgment of 26 August 2021, 3 SaGa 13/21. 
390  Labour Court Cologne, judgment of 20 May 2021, 8 Ca 7667/20. 
391  Federal Labour Court, judgment of 2 March 2006, 2 AZR 64/05. 
392  State Labour Court of Berlin and Brandenburg, judgment of 24 March 2021, 4 Sa 1243/20. See already 

State Labour Court Hessen, judgment of 10 June 2015, 6 Sa 451/14; State Labour Court Hamm, judgment 
of 22 July 2009, 3 Sa 1630/08. 

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The Federal  Labour Court  requires a  three-step approach to determine the  existence  of 
operational reasons that allow employers to reject a request for working time reduction. 
(1) It must be determined whether the working time regulation considered necessary by 
the employer is based on a company organisational concept at all and, if so, what concept 
it is. (2) Subsequently, it is necessary to examine the extent to which the working time 
regulation  resulting  from  the  organisational  concept  actually  precludes  the  demand  for 
working time reduction. (3) Finally, the weight of the conflicting operational reasons must 
be examined. In this context, the question must be clarified as to whether the operational 
organisational concept or the underlying entrepreneurial task is significantly impaired by 
the  deviation  desired  by  the  employee.  Decisive  for  the  existence  of  the  operational 
reasons  is  the  time  of  the  rejection  of  the  desired  working  time  by  the  employer,  who 
bears  the  burden  of  presentation  and  proof  for  the  existence  of  conflicting  operational 
reasons.393 

Part-time employment is already claimed ‘instead of parental leave’ within the meaning of 
Section 13b(3)  5  Act  for  the  provision  for  former  members  of  the  armed  forces 
(Soldatenversorgungsgesetz)  (with  the  consequence  of  an  unreduced  entitlement  to 
transitional fees) if the part-time employment is applied for and approved for a period for 
which the soldier is (instead) also entitled to the granting of parental leave; there is no 
need for an express declaration to this effect in the application or decision.394 

5.11.7 Table on flexible working arrangements (FWA) 

Table  8:  FWA,  including  remote  working  arrangements,  flexible  working  schedules,  or 
reduced working hours 

Right to 
adjust 
working 
patterns 
Yes, 
reduction 
of working 
time. 

Workers 
entitled 

Absolute or 
relative right 

Limited duration and 
right to return to the 
original pattern 

Qualifying 
conditions 

Yes 

Absolute right, 
unless 
operational 
reasons to 
reject. 

Right to temporary 
working time reduction 
can be agreed if more 
than 45 employees and a 
limited number of other 
employees already benefit 
from that arrangement. 

Yes, 6 months 
service, more 
than 15 
employees. 

 Legal protection provisions in the Work-Life Balance Directive 2019/1158395 

5.12.1 Maintenance of rights acquired or in the process of being acquired by the worker 

(Article 10(1) WLB Directive) 

Section 17  Act  on  Parental  Leave  states  that  previous  entitlements  of  annual  leave  are 
retained  but  that  further  rights  to  annual  leave  cannot  be  acquired  while  on  leave. 
Regarding the latter, the entitlement is reduced by one twelfth for every month of leave. 
If the employment relationship ends during parental leave or is not continued afterwards, 
the employee has to be compensated for retained rights to annual leave. The possibility 
to  reduce  the  amount  of  annual  leave  has  been  discussed  controversially  in  Germany. 
Specifically,  there  is  some  disagreement  on  whether  the  Act  indeed  reduces  rights,  or 
whether the rights never existed in the first place. The fact that the reduction of annual 
leave  depends  on  the  employer’s  action  (‘the  employer  can  reduce…’)  is  also  deemed 

393  Federal Labour Court, judgment of 20 January 2015, 9 AZR 735/13; 3 November 2012, 9 AZR 259/11. 
394  Federal Administrative Court, judgment of 14 April 2015, 2 B 16/14. 
395  See De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-
transposition-of-the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead.  

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problematic as it is as  such unforeseeable  for  the employee.396 The  reduction of annual 
leave or bonuses or delays in the assignment to a higher wage group are not deemed to 
constitute indirect sex discrimination or the indirect discrimination is justified by the lack 
of  working  experience  of  parents  who  have  taken  parental  leave.  Childcare  periods  of 
federal civil servants for up to three years as well as parental leave count as periods of 
experience. 

Section 4(4)  Act  on  Care  Leave  also  entitles  the  employer  to  reduce  the  annual  leave 
entitlement by one twelfth for each month on leave. 

Regarding short ad hoc leave (force majeure) pay entitlements may be affected but other 
duties  are  retained,  and  the  employment  relationship  continues.  This  includes  social 
insurance  contributions.  There  are  no  provisions  that  allow  for  the  reduction  of  annual 
leave due to this type of short-term emergency leave. 

5.12.2 Right to return to the same or an equivalent job (Article 10(2) WLB Directive) 

German law on parental leave does not explicitly deal with the right to return to the same 
or equivalent post on terms and conditions which are no less favourable to leave takers. 
Section 15(5)  only  stipulates  that  the  agreement  to  part-time  parental  leave  does  not 
affect  the  right  to  continue  part-time  work  prior  to  parental  leave  unchanged  during 
parental leave, provided employees do not work more than 32 hours a week, and to return 
to the working hours agreed before the start of parental leave after parental leave. There 
is  also  no  provision  that  makes  explicit  that  the  employment  relationship  is  retained. 
However, it is assumed that parental leave only pauses the main duties of the employment 
relationship  (pay/service)  not  the  contractual  relationship  itself,  given  that  a  European 
conform interpretation indeed requires it. As such, one could suggest that the question of 
‘return  to  work’  is  not  relevant  within  German  law.  However,  while  the  employment 
arrangements should retain anything that is stipulated in the contract, the employer can 
also issue instructions regarding the working time, working place and specific content of 
work  activities.  As  such,  it  has  been  criticised  as  insufficient  for  the  implementation  of 
Directive 2010/18.397 

The Act on Care Leave does not provide an explicit right to return either. However, the 
legislator did indeed assume that this would happen.398 The Act on Part-time Work changes 
a working time permanently and there is no right to return to full-time work (only a right 
to preferential treatment), unless a temporary reduction is agreed (Section 9a). 

5.12.3 Status of employment or employment relationship (Article 10(3) WLB Directive) 

It is generally assumed that the employment-employee relationship is maintained during 
parental  leave  while  the  main  obligations  (pay/service)  are  suspended.  During  parental 
leave,  parents  continue  to  be  covered  by  social  security  systems  such  as  healthcare. 
Childcare periods for children under the age of three are taken into account for statutory 
entitlements to a pension and unemployment benefits. 

396  Stefan Treichel (2021), On the necessity to implement the Work-Life Balance Directive 2018/1158 of 20 

July 2019 into the current Labour and Social law (Zur Notwendigkeit einer Umsetzung der 
Vereinbarkeitsriglinie 2019/1158 vom 20. Juni 2019 om das geltende Arbeits- und Socialrecht) (Duncker & 
Humbolt, Berlin) 71-2. 

397  See German Women Lawyers’ Association (2014), ‘Stellungnahme vom 26.06.2014 zum Entwurf eines 
Gesetzes zur Einführung des Elterngeld Plus mit Partnerschaftsbonus und einer flexibleren Elternzeit im 
BEEG’, available at: https://www.djb.de/verein/Kom-u-AS/K4/st14-10/. 

398  BT-Drs 16/7439, 91; Stefan Treichel (2021), On the necessity to implement the Work-Life Balance 

Directive 2018/1158 of 20 July 2019 into the current Labour and Social law (Zur Notwendigkeit einer 
Umsetzung der Vereinbarkeitsriglinie 2019/1158 vom 20. Juni 2019 om das geltende Arbeits- und 
Socialrecht) (Duncker & Humbolt, Berlin) 86. 

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The employment status continues to exist within the context of care leave and family care 
leave. 

5.12.4 Prohibition of discrimination (Article 11 WLB Directive) 

The Act on Parental Allowance and Parental Leave does not provide a specific provision on 
discrimination. While parental leave discrimination will often fall under the scope of indirect 
sex discrimination within the General Equal Treatment Act, men and women have equal 
access to leave and the Act, in parts, encourage equal uptake. While most of the (unpaid) 
family care is still carried out by women, it is not always certain that the courts will identify 
such indirect discrimination, and fathers on parental leave may struggle to establish a case 
of indirect sex discrimination. However, case law has indeed recognised such protection. 

The general rule within the Civil Code states that an employer may not disadvantage an 
employee  in  an  agreement  or  measure  because  the  employee  is  legitimately  exercising 
their rights (Section 612a Civil Code, BGB). This is a general prohibition of victimisation 
(Maßregelungsverbot). However, this may not be deemed sufficient, given that this can 
be distinguished from a ban on discrimination. The distinction is explicit in the Act on Part-
Time work. Section 4 bans discrimination according to which a part-time worker may not 
be treated less favourably than a comparable full-time worker because of their part-time 
work,  unless  objective  reasons  justify  a  difference  in  treatment.  Moreover  Section 5 
prevents the employer from disadvantaging an employee because of the exercise of rights 
under the Act (victimisation). Section 612a Civil Code is a general rule similar to Section 5 
of the Act on Part-Time work. 

Neither the Home Care Leave Act nor the Family Home Care Leave Act contain any explicit 
prohibition  of discrimination or unfavourable treatment due to taking carers’ leave. The 
experts of the Second Equality Report of the Federal Government criticised the complexity 
and lack of transparency of the regulations of the Home Care Leave Act and the Family 
Home  Care  Leave  Act  and  the  small  number  of  persons  taking  care  leave  under  these 
laws.399  They  recommended  consolidating  both  laws,  with  amendments  to  make  them 
more concise and manageable. The experts strongly recommended the introduction of a 
flexible time budget of 120 days in total to take carers’ leave (for days or weeks or months 
over  several  years)  while  being  reimbursed  by  compensation  of  payment  in  an  amount 
comparable  to  parental  allowances.400  The  statutory  entitlement  to  120  days  of  carers’ 
leave in total and carers’ allowances would be financed by taxes. 

The  Federal  Anti-Discrimination  Agency  can  now  also  be  contacted  by  employees  who 
believe they have been discriminated against on the basis of applying for or claiming time 
off from work or adjusting working hours as parents or carers in accordance with the Act 
on Parental Allowance and Parental Leave, the Home Care Leave Act or the Family Home 
Care Leave Act (Section 27(1) General Equal Treatment Act). 

5.12.5 Protection from dismissal and burden of proof (Article 12 WLB Directive) 

Section 18 of the Act on Parental Allowance and Parental Leave does provide protection 
from dismissal from the moment the parental leave is notified. The scope of protection is 
determined  by  the  notice  periods  (meaning  that  the  protection  starts  8  or  14  weeks 
beforehand respectively, depending on whether the child is younger or older than 3 years 
old) and includes all periods of leave. The provision does not only prohibit dismissal ‘on 
the grounds that they have applied for or have taken parental leave’ but provides general 
protection  from  dismissal,  subject  to  an  exception  in  ‘special  circumstances’  to  be 
approved by a ‘upper Länder authority’. Such a special circumstance exists if it appears 
justified  that  the  employee’s  primary  interest  in  the  continuation  of  the  employment 

399  Federal Government (2017), Second Gender Equality Report, Berlin, p. 113, available at: 
www.bmfsfj.de/bmfsfj/service/publikationen/zweiter-gleichstellungsbericht-119796. 

400  Federal Government (2017), Second Gender Equality Report, Berlin, pp. 113-114.  

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relationship  takes  a  back  seat  in  comparison  to  the  interests  of  the  employer  due  to 
extraordinary circumstances. This includes for example the closure of the company where 
a  relocation  of  the  employee  is  impossible.401  The  employer  is  required  to  demonstrate 
that  the  dismissal  is  based  on  other  reasons  and  not  because  of  the  application  for  or 
enjoyment  of  parental  leave.  These  requirements  are  outlined  without  reference  to  a 
specific  provision  concerned  with  burden  of  proof,  similar  to  Section 22  General  Equal 
Treatment Act.402 

The  protection  also  applies  if  the  parent  takes  part-time  parental  leave  working  for  the 
same employer or continues to work part-time without taking parental leave and is entitled 
to parental pay. 

However, there is no explicit reference to ‘all preparations for the dismissal’ as stated in 
the Directive. Such a right does exist in the Act on Maternity Leave, following the judgment 
in Paquay C-460/06. The coalition agreement of the current Government plans to extend 
the  protection  from  dismissal  to  include  three  months  after  the  return  from  leave. 
Currently, dismissal at the end of parental leave can become effective when the notice of 
termination is given at least three months before the dismissal is to become effective. 

Section 5(1) Home Care Leave Act is constructed in the same way as Section 18 Act on 
Parental Allowance and Parental Leave and provides general protection from dismissal, not 
only  dismissal  because  of  the  application  for  or  enjoyment  of  leave.  Dismissal  is  only 
possible in exceptional circumstances and with prior permission.  The protection for  care 
leave  starts  at  the  moment  of  the  notification  (but  no  more  than  12  weeks  before 
commencement of leave) until the end of the short-term or long-term leave period. In the 
case  of  family  care  leave  or  in  relation  to  smaller  employers  (generally  fewer  than  15 
employees), the protection against dismissal begins with the commencement of the leave 
period. The Act does not explicitly prohibit preparation of dismissal. 

The  Act  on  Part-time  Work  does  not  protect  from  dismissal  as  such  but  prohibits  the 
dismissal of an employee because of their refusal to work full- or part-time (Section 11). 
Other than that, it has been suggested that a dismissal would be contrary to Section 5 Act 
on  Part-time  work,  preventing  employers  from  disadvantaging  an  employee  because  of 
the  exercise  of  rights  under  the  Act  (see  also  Section 612a  Civil  Code).  As  such,  the 
dismissal  would  be  ineffective  (see  Section 134  Civil  Code).  However,  this  would  not 
include the preparation for dismissal.403 

5.12.6 Case law 

In  2012,  the  Administrative  Court  of  Darmstadt  decided  upon  the  protection  against 
dismissal  during  parental  leave.404  The  Court  explained  that  the  protection  against 
dismissal  during  parental  leave  was  not  as  strong  as  the  protection  against  dismissal 
during  maternity  leave  but  stronger  than  the  general  protection  against  dismissal.  The 
interests  of  the  employee  taking  parental  leave  are  regarded  by  law  as  taking  priority. 
Therefore, it would need exceptional circumstances for the employee’s interests to come 
after the employer’s interests in the termination of the employment relationship suspended 

401  General administrative regulation on protection against dismissal in the event of parental leave of 3 January 
2007 https://www.verwaltungsvorschriften-im-internet.de/bsvwvbund_03012007_204292603000.htm.  
402  Stefan Treichel (2021), On the necessity to implement the Work-Life Balance Directive 2018/1158 of 20 

July 2019 into the current Labour and Social law (Zur Notwendigkeit einer Umsetzung der 
Vereinbarkeitsriglinie 2019/1158 vom 20. Juni 2019 om das geltende Arbeits- und Socialrecht) (Duncker & 
Humbolt, Berlin) 76. 

403  Stefan Treichel (2021), On the necessity to implement the Work-Life Balance Directive 2018/1158 of 20 

July 2019 into the current Labour and Social law (Zur Notwendigkeit einer Umsetzung der 
Vereinbarkeitsriglinie 2019/1158 vom 20. Juni 2019 om das geltende Arbeits- und Socialrecht) (Duncker & 
Humbolt, Berlin) 109. 

404  Administrative Court of Darmstadt, judgment of 26 March 2012, 5 K 1830/11.DA, 

https://openjur.de/u/433574.html.  

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during  parental  leave.  This  would  require  serious  breaches  of  duty,  such  as  operational 
offences or  repeated  serious breaches of  employment contract obligations.405 The State 
Administrative Court of North Rhine-Westphalia decided in 2017 that severe operational 
reasons such as the closure of a medical practice could justify a dismissal during parental 
leave.406  The  Higher  Administrative  Court  Munich  further  confirmed  that  the  balance  of 
interests only opens up the discretionary decision of the competent authority, once special 
circumstances are indeed present.407 In a 2011 ruling the Federal Labour Court held that 
the  protection  from  dismissal  before  commencement  of  parental  leave  can  only  be 
asserted if there are also corresponding requirements for parental leave at the time of an 
alleged  dismissal  –  in  addition  to  the  (announced)  offspring,  parental  leave  must  have 
been applied for in writing and in due time and the corresponding protection period against 
dismissal must already apply.408 

In  2016,  the  Federal  Constitutional  Court  decided  that  a  decision  of  the  Federal  Labour 
Court  applying  the  Federal  Parental  Leave  and  Parental  Allowances  Act  instead  of  the 
regulations on special dismissal protection in the case of collective redundancies had put 
the female claimant at a disadvantage and thus, violated the constitutional prohibition of 
sex discrimination under Article 3(2) of the German Basic Law.409 While the regulations on 
parental leave are gender-neutral, it is evident that a much greater proportion of mothers, 
compared to fathers, take parental leave (2014: 41.5 % of working mothers but only 2 % 
of  working  fathers).  Thus,  the  non-application  of  the  regulations  on  special  dismissal 
protection  detrimental  to  parents  taking  parental  leave  in  fact  put  female  parents  at  a 
disadvantage compared to male parents and constituted indirect sex discrimination. This 
discrimination  was  not  compatible  with  the  German  Constitution.  The  competent 
authorities were obliged to apply the advantageous dismissal protection.410 

There is plenty of case law that considers disadvantages related to current or past parental 
leave within the scope of sex discrimination. For example, recently, the State Labour Court 
of Berlin and Brandenburg considered a refusal to offer a permanent position because of 
maternity or parental leave, under the scope of direct sex discrimination and the General 
Equal Treatment Act.411 The employer had only offered a temporary position. The  Court 
considered that the temporary nature of the contract could be declared void as it could be 
considered  victimisation  for  taking  leave.  As  such,  the  contract  should  be  considered 
permanent.  The  Court  distinguished  this  from  the  right  to  employment  following  a 
discriminatory  recruitment  process,  which  is  explicitly  excluded  according  to  Section 15 
paragraph 6 General Equal Treatment Act. 

The Federal Labour Court held that the Act on Part-time Work prohibits a derogation from 
the  principle  of  pro  rata  temporis  to  the  detriment  of  part-time  workers  if  there  is  no 
objective  reason  for  doing  so.  A  worse  position  of  part-time  workers  can  be  objectively 
justified  if  its  reason  can  be  derived  from  the  relationship  between  the  purpose  of  the 
service and the extent of part-time work. The examination of the objective justification of 
the different treatment must be based on the purpose of the service.412 

405  Confirmed by the State Administrative Court of Bavaria, judgment of 7 October 2015, 12 ZB 15.239, 

setting the requirements very high.  

406  State Administrative Court of North Rhine-Westphalia, judgment of 12 January 2017, 12 E 896/16.  
407  State Administrative Court of Bavaria, judgment of 5 November 2019, 12 ZB 19.1222.  
408  Federal Labour Court, judgment of 12 May 2011, 2 AZR 384/10. 
409  Federal Constitutional Court, judgment of 8 June 2016, 1 BvR 3634/13: 

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/06/rk20160608_1bvr3634
13.html.  

410  Followed by Federal Labour Court, judgment of 26 January 2017, 6 AZR 442/16. 
411  State Labour Court of Berlin and Brandenburg, judgment of 23 April 2021, 12 Sa 1421/20, 
ECLI:DE:LAGBEBB:2021:0423.12SA1421.20.00, the claim was unsuccessful on its merits.  

412  Federal Labour Court, judgment of 22 October 2019, 9 AZR 71/19.  

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 Evaluation of implementation413 

The German Law on Parental or Care-related Leave were already extensive and did provide 
many of the rights stipulated in the Work-Life Balance Directive. There was thus no need 
for wide-reaching reform of national law to implement the Work-Life Balance Directive. 

The Maternity Protection Act as well as the Federal Parental Leave and Parental Allowances 
Act (materially) implementing EU law exceed the European requirements in many aspects. 
Maternity  protection  is  comprehensive,  maternity  leave  is  longer  than  necessary  and 
maternity  allowances  granted  in  the  amount  of  the  last  net  income  are  superb.  The 
regulations on parental leave avoid some of the well-known traps, thanks to the individual 
nature  of  the  right  and  non-transferability.  The  duration  of  parental  leave  is  extensive: 
parental allowances are awarded for up to 14 months and there are special incentives for 
fathers to take parental leave and perform care work and for mothers to return to (part-
time)  work  before  or  on  the  first  birthday  of  the  child.  As  such,  German  law  already 
provided  much  of  what  is  deemed  innovative  within  the  Work-Life  Balance  Directive. 
However, most parents (especially fathers) do not use the entire entitlement to (unpaid) 
parental leave, and there is still a significant percentage of fathers who do not even take 
the  two  months  of  non-transferable  parental  pay,  although  the  group  is  shrinking.  The 
lack of paternity leave has been discussed above. There are good arguments to consider 
a  specific  transposition  necessary,  given  that  parental  leave  is  not  necessarily  taken  in 
relation to the birth of the child and thus has a different purpose. However, de facto it is 
clear that the non-birthing parent can take leave directly after the birth of the child. Either 
way, the  Government has  confirmed its  commitment to introduce a  two-week paternity 
leave in February 2023. It is expected for 2024. 

Apart  from  minor  discrepancies  between  the  national  law  and  the  Directive,  the  most 
serious shortcomings are within the area of legal protection. While most of the rights are 
indeed  there,  as  the  contract  continues,  employees  are  protected  from  dismissal,  etc., 
additional  clarification  would  be  beneficial,  including  the  protection  from  discrimination, 
the right to return to the same post, etc. While the Implementation Act from December 
2022 has expanded the scope of the Home Care Leave Act and Family Home Care Leave 
Act to employers with fewer than 15 or 25 employees respectively, the right to leave is 
relative, namely employees can apply for leave and employers must respond within four 
weeks giving reasons. It is assumed that this does not impose a high level of formality. 
Protection from dismissal also only starts with the commencement of the leave, not once 
the leave is requested. 

 Remaining issues 

The Act’s relationship with gender equality is not always obvious. While the 2007 reform 
of the parental pay/leave regulation was ambitious in that regard, the aspects that directly 
foster equal shares of parental responsibility are minor and are not transferred to the other 
provisions on leave. However, many of the other leave provisions are non-transferable, so 
the primary issue is that of pay. Pay is also the main reason for fathers not to take parental 
leave, even if they then forfeit the two months of non-transferable parental pay. Indeed, 
parents with significant pay gaps between themselves may struggle to both take leave, 
because they depend on the full income of the main breadwinner. 

Discrimination on the grounds of pregnancy, maternity protection and parental or carers’ 
leave is still widespread and poses a real obstacle to gender equality, given that it is so 
hard to prove and so difficult to end. Traditional role models like that of a male breadwinner 
and a female care-giver persist in the daily life of younger couples as statistics on working 
time  and  the  gender  care  gap  illustrate.  It  seems  that  discrimination  on  grounds  of 

413  See De la Corte Rodríguez, M. (2022), The transposition of the Work-Life Balance Directive in EU Member 

States: A long way ahead, Annex I, available at: https://www.equalitylaw.eu/downloads/5779-the-
transposition-of-the-work-life-balance-directive-in-eu-member-states-a-long-way-ahead. 

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pregnancy,  maternity  and  family-related  leave  is  still  widespread  in  the  civil  service, 
especially in male-dominated areas of work. 

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6 

Occupational social security schemes (Chapter 2 of Directive 2006/54) 

  General (legal) context 

6.1.1  Issues related to gender equality and social security 

The Second Gender Equality Report of the Federal Government specifically highlights the 
significance of the gender pension gap.414 In 2021, the gender pension gap was 29.9%. 
On average, women’s retirement income was almost a third lower than men’s income, the 
gap is 42.6 % if survivor pensions are excluded.415 This means that many women are at 
risk of old-age poverty. The pension insurance system for dependent employees is based 
on three pillars: the statutory pension  schemes, the occupational pension  schemes and 
private  retirement  provisions.  Women  are  significantly  worse  off  in  all  three  areas.  The 
reasons  for  that  are  well-known:  the  gender  pay  gap  of  more  than  20 %,  the  gender-
segregated labour market, the high number of female employees working part-time and 
the interruptions to female working life due to periods of family or care-related leave. 

Because  of  their  lower  employment  rate,  women  are  also  less  likely  to  benefit  from 
occupational pension schemes. Furthermore, female employees subject to social insurance 
contributions in the private sector are less likely to be covered by  occupational pension 
schemes  due  to  the  fact  that  women  are  more  likely  to  work  in  small  companies  and 
sectors  without  collective  bargaining  agreements  in  which  there  are  no  occupational 
pension schemes. In addition, women often work in marginal jobs. Despite the prohibition 
of  indirect  discrimination,  the  inclusion  of  part-time  employees  in  occupational  pension 
schemes has not been secured or accepted throughout. This can be exemplified by a trade 
union’s  (ver.di)  (withdrawn)  appeal  to  excluding  marginal  employees  from  the  union’s 
occupational  pension  scheme,  arguing 
the  administrative  burden  was 
disproportionately high in view of the low contributions of marginal employees.416 

that 

Due to the gender pay gap, lower contributions and smaller savings, female workers very 
seldom profit from the tax exemptions for occupational pension contributions or the tax 
incentives for private retirement provisions. Legislative activities to expand and strengthen 
the  systems  of  occupational  pension  schemes  focus  on  the  increase  of  tax  incentives. 
However,  these  tax  incentives  are  indirect  subsidies  that  increase  with  income  and,  in 
addition,  disadvantage  women  on  account  of  their  income.  Instead  of  encouraging  the 
spread  of  occupational  pension  schemes  to  higher  income  groups,  more  appropriate 
alternatives, such as setting maximum amounts, which women can exhaust just as well 
as men, negative taxes or direct benefits, should have been considered.417 

6.1.2  Political and societal debate and pending legislative proposals 

A highly controversial topic was and remains the question of the duty to pay social security 
contributions when receiving payments from an occupational pension scheme. Since 2004, 
recipients of occupational pensions and direct insurance have to pay sickness and long-
term care insurance contributions for a payout amount of more than EUR 150 per month, 
and moreover, they have to pay the contributions both for employees and for employers. 

414  Federal Government (2017), Second Gender Equality Report, Berlin. Documents are available at: 

www.bmfsfj.de/bmfsfj/service/publikationen/zweiter-gleichstellungsbericht-119796. The committee of 
experts consisted of Eva Kocher (chair), Thomas Beyer, Eva Blome, Holger Bonin, Ute Klammer, Uta Meier-
Gräwe, Helmut Rainer, Stephan Rixen, Christina Schildmann, Carsten Wippermann, Anne Wizorek, and 
Aysel Yollu-Tok.  

415  Statistisches Bundesamt (2023), Gender Pension Gap: 

www.destatis.de/DE/Presse/Pressemitteilungen/2023/03/PD23_N015_12_63.html.  

416  See https://community.beck.de/2017/10/25/anspruch-geringfuegig-beschaeftigter-auf-betriebliche-

altersversorgung.  

417  See German Women Lawyers’ Association: https://www.djb.de/verein/Kom-u-AS/K4/st17-06/.  

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In December 2016, the Federal Government presented a draft law on the expansion and 
strengthening  of  occupational  pension  schemes,418  which  did  not  include  reflections  on 
gender  aspects  such  as  the  gender  pension  gap  (57 %)  or  a  gender-specific  legislation 
impact  assessment.419  On  17 August  2017,  the  Bundestag  passed  the  Act  on  the 
strengthening  of  occupational  pension  schemes.  The  Act  entered  into  force  on 
1 January 2018 without any major amendments.420 

  Direct and indirect discrimination 

Direct  and  indirect  discrimination  on  the  ground  of  sex  in  occupational  social  security 
schemes is not explicitly prohibited in German law. Occupational social security schemes 
in Germany cover benefits for retirement, invalidity, or for surviving family members. The 
respective  Occupational  Pension  Schemes  Act  does  not  contain  a  prohibition  on  gender 
discrimination.  However,  the  constitutional  principle  of  gender  equality  may  be  invoked 
and, moreover, not only does the General Equal Treatment Act apply by way of subsidiarity 
(especially on equal pay), but since 2011 the courts have also monitored the compliance 
of the Occupational Pension Schemes Act with the relevant directives.421 

The Federal Labour Court has considered entitlements to early retirement pensions that 
depended  on  the  formerly  different  (earlier)  retirement  ages  of  women  to  be  unlawful 
indirect  discrimination.422  Following  the  case  law  of  the  CJEU,  the  Federal  Labour  Court 
has developed effective protection against gender discrimination, and especially indirect 
discrimination of (mostly female) part-time workers. It held that the employer must not 
exclude  part-time  employees  from  occupational  pension  schemes,  and  it  required  the 
employer  to  conclude  pension  agreements  that  provide  for  different  classes  of  workers 
according to their working hours.423 The Federal Constitutional Court has found that lower 
pension schemes for part-time civil servants amount to indirect sex discrimination and are 
incompatible with the Constitution.424 

The  Federal  Labour  Court  approved  a  pension  scheme  that  effectively  excludes  from 
occupational pension benefits employees who have already reached the age of 55 at the 
start of the employment relationship and considered that the scheme  did not constitute 
discrimination  based  on  age  or  sex.  Specifically,  it  denied  that  it  created  ‘particular 
disadvantages’ for women. It noted that an average working life lasts approximately 40 
years and the part of such a working life affected by the age limit must not be unreasonably 
long. According to the statistics of the German Pension Insurance, insurance pensions in 
the Federal Republic of Germany were based on an average of 39.0 years of insurance in 
2019. This figure was 36.5 years  of insurance  for  women and 41.9 years for men.  This 
difference was not deemed so great that women are unduly disadvantaged by the effects 
of the age limit.425 

418  Available at: https://www.bmas.de/SharedDocs/Downloads/DE/Thema-Rente/entwurf-gesetz-staerkunng-

betriebliche-altersversorgung.pdf?__blob=publicationFile&v=1.  

419  The draft was therefore heavily criticised by the German Women Lawyers’ Association, 

https://www.djb.de/verein/Kom-u-AS/K4/st17-06/.  

420  Act on the strengthening of occupational pension schemes of 17 August 2017, Official Journal 2017, 
p. 3214; related documents see http://dipbt.bundestag.de/extrakt/ba/WP18/788/78841.html.  

421  See Berghahn, S., Klapp, M. & Tischbirek, A. (2016), Evaluation des Allgemeinen 

Gleichbehandlungsgesetzes (Evaluation of the General Equal Treatment Act), ADS: Berlin, p. 70f, with 
further references. 

422  Federal Labour Court, judgment of 15 February 2011, 9 AZR 750/09.  
423  Federal Labour Court, judgments of 4 March 1989, 3 AZR 490/87; of 23 January 1990, 3 AZR 58/88; of 

20 November 1990, 3 AZR 613/89; and of 5 October 1993, 3 AZR 695/92.  

424  Federal Constitutional Court, judgment of 18 June 2008, 2 BvL 6/07.  
425  Federal Labour Court, judgment of 21 September 2021, 3 AZR 147/21.  

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  Personal scope 

The personal scope of German law relating to occupational social security schemes cannot 
be easily compared to the scope specified in Article 6 of Directive 2006/54 because there 
are several regulations with varying scopes. 

The  personal  scope  of  the  Occupational  Pension  Schemes  Act  is  restricted  to  (former) 
employees with an employer that grants the pensions. Employees in the public sector are 
insured  by  the  state  pension  agency  (Versorgungsanstalt  des  Bundes  und  der  Länder). 
Civil  servants,  including  the  military,  are  entitled  to  special  pensions  under  federal  and 
state law. 

Self-employed  persons  (and  freelancers)  cannot  normally  take  part  in  occupational 
pension  schemes.  Some  self-employed  persons  have  private  insurance,  but  most  self-
employed persons as well as nearly all members of the liberal professions are covered by 
one of the many professional pension funds (berufsständische Versorgungswerke), which 
are internally regulated by their own chambers and boards with the right to self-regulate, 
as well as by some state framework regulation. 

A major problem for members of the liberal professions was that child-raising periods were 
not  taken  into  account  by  every  professional  pension  fund.  In  2005,  the  Federal 
Constitutional Court decided that professional pension funds for lawyers have to offer non-
contributory  membership  during  child-raising  periods  for  up  to  three  years  to  meet  the 
requirements  of  the  gender  equality  principle  under  the  German  Constitution. 426 
Amendments to Section 56 of Social Code No. 6 in 2009 introduced a statutory entitlement 
to the recognition of child-raising periods within the statutory pension scheme for persons 
who  generally  are  covered  by  a  professional  pension  fund427  (the  requirement  was  that 
the professional pension fund did not offer an adequate recognition of child-raising periods 
compared with the statutory pension scheme which is, unfortunately, true for every one 
of the 89 professional pension funds in Germany). The recognition of each child is credited 
with  a  12-month  contribution  period.  To  receive  pensions  under  the  statutory  pension 
scheme, the persons insured have to meet a minimum contribution period of 60 months 
in  total,  but  parents  can  pay  the  missing  contributions  voluntarily  when  reaching  the 
retirement age. 

  Material scope 

The  material  scope  of  the  Occupational  Pension  Schemes  Act  is  more  restricted  than 
specified in Article 7 of Directive 2006/54 and covers benefits for retirement, invalidity, or 
for surviving family members. Unemployment insurance is mandatory and statutory; the 
same  applies  to  protection  against  industrial  accidents  and  occupational  diseases 
(although  administrated  by  the  trade  associations),  and  health  insurance  is  mandatory 
whether under private or statutory insurance schemes. 

  Exclusions 

As  the  German  legislature  did  not  implement  Directive 2006/54  with  regard  to 
occupational social security schemes directly, the law has not applied the exclusions from 
the material scope as specified in Article 8. 

426  The Federal Constitutional Court, judgment of 5 April 2005, 1 BvR 774/02.  
427  Following a landmark decision by the Federal Social Court, judgment of 31 January 2008, B 13 R 64/06 R, 

stating that the non-recognition of child-raising periods was incompatible with the Constitution.  

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  Laws  and  case  law  falling  under  the  examples  of  sex  discrimination 

mentioned in Article 9 of Directive 2006/54 

The law no longer permits different retirement ages for men and women. However, there 
are still examples of sex discrimination as mentioned in Article 9 of Directive 2006/54 as 
indirect sex discrimination remains a major problem. The Federal Labour Court has held 
that a failure to take periods of bringing up children into consideration for the purpose of 
occupational pensions constitutes neither direct nor indirect discrimination on the grounds 
of sex and does not violate European or national constitutional law.428 The condition of a 
15-year period of service for the same employer to be entitled to occupational pensions 
was not considered to constitute indirect sex discrimination either.429 The Federal Labour 
Court  explicitly  rejected  the  addition  of  (interrupted)  periods  of  service  for  the  same 
employer.430 

The Federal Labour Court has confirmed that part-time employees cannot claim the same 
level of benefits from a pension plan or company pension scheme as full-time employees. 
Rather, it is permissible to provide such benefits on a pro rata basis according to the scope 
of employment compared to a full-time employee with the same length of service.431 The 
Higher Labour Court of Munich rejected a claim of (indirect) discrimination with reference 
to the pro rata temporis principle, even if it ignored periods of full-time employment, by 
only focusing on the last 10 years.432 With reference to the case law of the Federal Labour 
Court,433  it  held  that  such  provision  lays  down  a  representative  period  for  the 
determination of the monetary factor in the case of part-time workers and was permissible, 
since it is not, in principle, inappropriate to take into account the scope of  employment 
during the last 10 years of the employment relationship, since that is a period in which 
the standard of living characterised by earnings has been consolidated. 

  Actuarial factors 

To  some  extent,  sex  was  previously  used  as  an  actuarial  factor  in  occupational  social 
security  schemes.  Since  2005,  unisex  tariffs  are  mandatory  under  the  Occupational 
Pension Schemes Act. However, in many professional pension funds, sex was previously 
an important factor in calculating the pension amounts to the detriment of women and it 
was  not  before  2007  that  the  last  fund  ended  this  practice.434  The  recognition  of  child-
raising  periods  is  still  a  problem.  Some  of  the  professional  pension  funds  offer  non-
contributory membership for up to three years, but no solutions for part-time work after 
childbirth, which is the norm in the liberal professions. Members of the liberal professions 
can apply for benefits from the statutory pension funds for children born after 1991 when 
their  professional  pension  fund  does  not  pay  for  child-raising  periods.  However,  lower 
courts have excluded the raising of adopted children from the beneficiary regulations of 
professional pension funds.435 For a considerable time, German courts have raised doubts 

428  Federal Labour Court, judgment of 20 April 2010, 3 AZR 370/08.  
429  Federal Labour Court, judgment of 12 February 2013, 3 AZR 100/11.  
430  Confirmed by the Federal Labour Court, judgment of 9 October 2012, 3 AZR 477/10.  
431  Federal Labour Court, judgment of 21 January 2020, 3 AZR 565/18; judgment of 19 April 2016, 3 AZR 

526/14.  

432  Higher Labour Court Munich, judgment of 17 March 2022, 7 Sa 588/21.  
433  Federal Labour Court, judgment of 17 April 2012, 3 AZR 280/10; 3 November 1998, 3 AZR 432/97.  
434  After the intervention of the relevant State Ministry, see Administrative Court of Hannover, judgment of 

3 December 2008, 5 A 873/08, which directly applied Directive 79/7/EEC due to its lack of timely 
implementation. The invalidity of the respective bylaw by the direct application of Article 4 of Directive 97/7 
was confirmed by the State Administrative Court of Lower Saxony, judgment of 23 October 2009, 
8 LC 12/09, and judgment of 12 June 2014, 8 LC 130/12.  

435  Administrative Court of Frankfurt, judgment of 23 October 2008, 12 K 1948/08F, although applying the 

German Constitution, the ECHR and Directive 79/7/EEC. In the author’s opinion, the Court was mistaken in 
assuming that this was a question of family protection only and not also one of gender equality.  

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as to whether national and European anti-discrimination law can be applied to professional 
pension funds at all.436 

In  2008,  the  Federal  Labour  Court  determined  that  actuarial  deductions  for  male 
employees  claiming  early  occupational  pensions  were  incompatible  with  Article 141  EC 
Treaty.437  At  that  time  and  some  years  later,  lawyers  were  still  discussing  whether  the 
Test-Achats  ruling  should  be  applied  to  occupational  pension  schemes.438  In  2013,  the 
Higher  Regional  Court  of  Celle  decided  that  the  state  pension  agency  (covering  around 
four million employees in the public sector) was obliged to employ gender-neutral actuarial 
factors under  constitutional and European  equality law.439 The  Higher Regional  Court  of 
Cologne disagreed.440 In 2017, the Federal Court of Justice decided that the use of different 
gender-based  actuarial  factors  by  the  state  pension  agency,  whether  organised  under 
private law or not, is incompatible with the prohibition of sex/gender discrimination under 
the German Constitution as well as the general spirit of Directive 2006/54 and the Test-
Achats ruling.441 In 2020, the Court considered that calculating the annuity of lump sums 
using gender-specific mortality tables was deemed contrary to Article 157 TFEU.442 

  Difficulties 

It is hard to identify and explain specific difficulties in Germany in relation to occupational 
social security schemes. One reason for this is that some security schemes in Germany 
are  not  comparable  to  either  statutory  social  security  schemes  or  occupational  social 
security schemes – the classification of the widespread self-regulated professional pension 
schemes is especially doubtful. Most liberal professions and many self-employed persons 
and freelancers are organised in self-governed and regulated bodies (mostly chambers) 
financed  professional  pension  schemes 
including  self-governed,  regulated  and 
(berufsständische Versorgungswerke). The states provide a very modest legal framework 
for these professional pension schemes and oversight thereof. 

  Evaluation of implementation 

As  the  Occupational  Pension  Schemes  Act  does  not  contain  a  prohibition  of  gender 
discrimination, courts are called upon to implement and mobilise the prohibition of direct 
and indirect sex/gender discrimination. Thus, some structural problems remain unsolved, 
among them the fundamental question of distributive justice in light of the considerable 
tax-funded subsidies to occupational pension schemes paid by the working general public, 
although the system benefits men disproportionately. 

 Remaining issues 

There are no remaining issues. 

436  The Federal Administrative Court, judgment of 25 July 2007, 6 C 27/06, decided that professional pension 

funds are not covered by the concept of remuneration as employed in Article 141 EC Treaty or by the scope 
of application of Directive 2000/78; confirmed by the State Administrative Court of Rhineland Palatinate, 
judgment of 26 May 2010, 6 A 10320/10.  

437  Federal Labour Court, judgment 19 August 2008, 3 AZR 530/06.  
438  E.g. Beyer, A. and Britz, T. (2013), ‘Zur Umsetzung und zu den Folgen des Unisex-Urteils des EuGH’ 

(Implementation and Consequences of the Test-Achats Ruling) Versicherungsrecht No. 28, pp. 1219-1227; 
Labour Court of Munich, judgment of 21 May 2013, 22 Ca 15307/12.  

439  Higher Regional Court of Celle, judgment of 24 October 2013, 10 UF 195/12.  
440  Higher Regional Court of Cologne, judgment of 6 January 2015, 12 UF 91/14. 
441  Federal Court of Justice, judgment of 8 March 2017, XII ZB 663/13, with further references.  
442  Federal Administrative Court, judgment of 7 October 2020, 2 C 19.19.  

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7 

Statutory schemes of social security (Directive 79/7) 

  General (legal) context 

7.1.1  Overview of national acts 

The different branches of the statutory schemes of social security are covered by different 
books of the Social Code. 

7.1.2  Political and societal debate and pending legislative proposals 

Social  security  systems  are  strongly  linked  to  the  level  of  pay  for  gainful  employment: 
inactive  spouses  (wives  doing  unpaid  care  work)  are  mainly  indirectly  insured  with  the 
employed spouse (husbands performing paid work). The statutory pension schemes reflect 
the gender-segregated labour market and the unequal distribution of paid work and unpaid 
care work as well the gender pay gap with all the discriminatory roots of its own. 

In November 2018, the Act on performance improvement and stabilisation in the statutory 
pension schemes entered into force.443 The crediting of child-raising periods for children 
born before 1992 was slightly improved and low-income earners will be better off. Until 
now,  there  has  been  a  transitional  period  for  low-income  earners  (currently  between 
EUR 520 and EUR 1 600), known as ‘midi-jobs’, in which reduced employee contributions 
were paid. Within the range,  reduced  contributions will no longer lead to lower pension 
benefits. The German Women Lawyers’ Association rightly points out that the authors of 
the  Second  Gender  Equality  Report  recommended  both  the  abolition  of  marginal 
employment  (mini  jobs)  and  the  abolition  of  midi-jobs.444  The  lower  social  security 
contributions  make  it  easier  to  take  up  gainful  employment,  but  at  the  same  time  the 
steep  rise  in  social  security  contributions  in  midi-jobs  as  well  as  the  decline  in  the 
household  income  of  married  couples  due,  among  other  things,  to  the  combination  of 
spousal splitting,445 wage tax class V and non-contributory health insurance set incentives 
that  lead  to  the  opposite  of  the  expansion  of  female  working  time.  Thus,  structural 
problems of female poverty in old age are not tackled. The current Government has not 
taken  up  the  suggestion.  Instead,  they  increased  the  range  for  both  midi-jobs  (from 
EUR 1 300 to EUR 1 600) and marginal/mini jobs (from EUR 450 to EUR 520).446 The Act 
also  aimed  at  facilitating  transition  into  work  with  full  social  security  contributions,  by 
easing the burden on employees, especially in the lower transitional sector.  Since 2013, 
‘mini-jobs’ (currently with an income of up to EUR 520 per month) have been subject to 
mandatory pension scheme contributions (with the possibility of an exemption). Between 
the 3rd and 10th birthday of the child – the ‘child consideration period’ – contributions of 
parents with mini-jobs are upgraded by up to 50 % in the pension calculation. 

443  Act on performance improvement and stabilisation in the statutory pension schemes of 28 November 2018, 

Official Journal 2018, p. 2016.  

444  German Women Lawyers’ Association: https://www.djb.de/verein/Kom-u-AS/K4/st18-12/.  
445  Despite severe and persistent criticism, the German tax law system strongly encourages the male 

breadwinner model by favouring high income differences between spouses – the larger the difference, the 
higher the tax benefit for married couples.  

446  Law on Increasing the Protection of the Statutory Minimum Wage and on Amendments in the Field of 
Marginal Employment (Gesetz zur Erhöhung des Schutzes durch den gesetzlichen Mindestlohn und zu 
Änderungen im Bereich der geringfügigen Beschäftigung), Act of 28 June 2022, available online: 
www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl122s0969.pdf%27%5
D__1683123087106.  

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Since 1 January 2021, pensioners with particularly low pensions are entitled to an add-on, 
the ‘basic pension’ (Grundrente).447 Those entitled are pensioners who worked for 33 years 
in an insured position and earned a low amount (less than 80 % of the average income). 
Periods of time spent caring for children or relatives are included in the calculation. The 
basic pension can amount to up to EUR 418 a month. It is assumed that about 70 % of 
beneficiaries  of  the  basic  pension  are  women.  Entitlements  are  assessed  automatically 
(i.e. without need for application) with the aim being to complete the assessment of all 
pensions by the end of 2022. There is also a new tax-free minimum (Rentenfreibetrag). 
The ‘basic pension’ without means-testing could guarantee a sufficient and independent 
income for women in old age but it would not tackle the foundations of female poverty in 
old age such as structural discrimination of women in working life and the unjust division 
of paid work and unpaid care work between the sexes. 

For many years, the diversity of pension schemes has been criticised and there have been 
repeated  demands  to  include  civil  servants  as  well  as  self-employed  persons  in  the 
statutory pension schemes – if only to safeguard the financial stability of the system. Civil 
servants  enjoy  special  protection  and  special  pension  schemes.  Many  self-employed 
persons,  especially  solo  entrepreneurs  (self-employed  without  employees),  have  no 
money spared to engage in any kind of pension scheme. 

  Implementation of the principle of equal treatment for men and women in 

matters of social security 

The principle of equal treatment for men and women in matters of social security is not 
really implemented in German law. Although Section 2 of the General Equal Treatment Act 
mentions social security and protection, the provisions of the Social Code restricting the 
prohibition of gender discrimination to vocational counselling, education and training are 
exhaustive. Courts are expected to employ the constitutional principle of gender equality. 

  Personal scope 

The personal scope of German law relating to statutory social security schemes cannot be 
easily compared to the scope specified in Article 2 of Directive 79/7 because the national 
law is diverse and most self-employed persons are covered by self-regulating bodies. Many 
independent professions and self-employed persons are covered by professional schemes 
such as lawyers, architects, writers, journalists, artists, etc. 

Under  the  Social  Codes,  statutory  social  security  schemes  apply  to  all  employees  and 
persons  in  vocational  training.  Civil  servants  are  insured  under  special  conditions 
complicated  by  reforms  of  the  distribution  of  legislative  powers  in  Germany.  Most  self-
employed  persons  (and  freelancers)  are  not  covered  by  the  statutory  social  security 
systems but can voluntarily become members (which is expensive). Some groups of the 
self-employed are covered under special legislation. 

  Material scope 

The  material  scope  of  German  law  is  broader  than  specified  in  Article 3(1)  and  (2)  of 
Directive 79/7  (but  lacks  an  explicit  prohibition  of  sex/gender  discrimination).  The 
statutory  social  security  scheme  covers  retirement  and  invalidity,  healthcare,  work 
accidents, unemployment, integration measures and social assistance, and – going beyond 
the Directive – statutory care insurance. 

447  Act on the Basic Pension (Gesetz zur Einführung der Grundrente für langjährige Versicherung in der 

gesetzlichen Rentenversicherung mit unterdurchschnittlichem Einkommen und für weitere Maßnahmen zur 
Erhöhung der Alterseinkommen, Grundrentengesetz), 12 August 2020, Official Journal 2020 (BGBl. 2020 I) 
p. 1879; see the women’s chapter of the trade union ver.di: 
https://frauen.verdi.de/themen/rente/++co++1fd0e30c-4f04-11e9-8e43-525400f67940. 

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  Exclusions 

It is hard to say whether German law applied the exclusions from the material scope as 
specified  in  Article 7  of  Directive 79/7,  since  there  is  no  explicit  implementation  of  the 
Directive. The mandatory pension age is 67 for all persons born after 1 January 1964. The 
equalisation of the pensionable age for men and women began between 1989  and 1992 
because  the  average  retirement  age  was  falling  sharply  and,  thus,  the  relationship 
between contributors and beneficiaries within the statutory pension system was constantly 
deteriorating.448  The  equalisation  process  was  accelerated  in  1996  and  the  transitional 
period  ended  in  2012.  The  regulations  on  survivor  benefits  are  gender-neutral  with  the 
exception of very old cases (the death of a spouse before 1986). 

The amendments to Social Code  No. 6 and the Act on old-age protection for farmers in 
2014 covered the recognition of childcare periods by the statutory pension schemes and 
by  the  professional  insurance  funds  and  introduced  the  option  of  an  early  entry  into 
retirement  at  the  age  of  63  without  deductions.  The  requirements  of  the  latter  are 
disproportionately met by well-paid male employees who did not interrupt their working 
life for childcare periods. 

  Actuarial factors 

Generally,  sex  is  not  used  as  an  actuarial  factor  in  statutory  social  security  schemes. 
However, in civil servants’ pension schemes, the administrative bodies use gender-specific 
mortality  tables  to  identify  the  average  life  expectancy  of  men  and  women  and  make 
calculations (among other things) on this basis. In 2013, the Federal Administrative Court 
queried whether this method of ‘pure statistical gender equality’ was compatible with the 
EU  law  principle  of  equal  pay  and  expressed  its  interest  in  a  clarifying  decision  of  the 
CJEU.449  In  2019,  the  State  Administrative  Court  of  Bavaria  also  held  that  the  use  of 
gender-specific mortality tables violated Article 157 TFEU.450 

  Difficulties 

It  is  hard  to  identify  specific  difficulties  in  relation  to  implementing  Directive 79/7  in 
Germany, as the Directive has never been explicitly implemented. Most liberal professions, 
self-employed  persons  and  freelancers  are  organised  in  self-governed  and  regulated 
bodies  (mostly  chambers)  including  self-governed,  regulated  and  financed  professional 
pension  schemes  (berufsständische  Versorgungswerke).  The  states  offer  a  very  modest 
legal framework and oversight of these professional pension schemes. 

  Evaluation of implementation 

As  Directive 79/7  has  never  been  explicitly  implemented,  it  is  hard  to  evaluate  the 
implementation. Unequivocal prohibitions of sex/gender discrimination are lacking as well 
as  gender  impact  assessments  of  highly  complicated  regulations  and  amendments.  The 
pension  system  is  confusing  and,  due  to  its  complexity,  lack  of  reserves  and  its 
fragmentation, difficult to reform. 

One recent example for reform, however, was the levelling of the pensions (and pension 
entitlements) of the male and female members of the professional pension scheme for old 
age, occupational disability and survivors’ insurance of the Chamber of Dentists of Lower 
Saxony.451 For many years, male members enjoyed significantly preferential treatment to 

448  For the legislative history, see Federal Constitutional Court, judgment of 3 February 2004, 1 BvR 2491/97, 
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2004/02/rk20040203_1bvr249
197.html.  

449  Federal Administrative Court, judgment of 5 September 2013, 2 C 47/11.  
450  State Administrative Court of Bavaria, judgment of 14 August 2019, 14 BV 18.671.  
451  See Administrative Court of Hannover, judgment of 10 December 2019, 5 A 5662/18.  

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the detriment of female members. When the chamber was forced to end this discrimination 
on  the  grounds  of  sex,  financial  considerations  ruled  out  increasing  the  pensions  and 
pension entitlements of female members to male standards. Therefore, the pensions (and 
pension  entitlements)  of  the  male  and  female  members  were  levelled.  Male  members 
claiming severe violations of their property rights as well as the prohibition of retroactive 
effect and protection of confidence were told by the courts that, taking into account Council 
Directive 79/7/EEC  of  19  December  1978  on  the  progressive  implementation  of  the 
principle of equal treatment for men and women in matters of social security, they could 
no longer (at least from 1985 onwards) establish a legitimate expectation to be better off 
and, moreover, that the equality of women in social security was an overriding reason of 
common good. 

  Remaining issues 

There are no remaining issues. 

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8 

Self-employed  workers  (Directive 2010/41/EU  and  some 
provisions of the Recast Directive)452 

relevant 

  Implementation of Directive 2010/41/EU 

Directive 2010/41/EU  has  not  been  explicitly  implemented  in  German  law.  The  Federal 
Government  and  the  Federal  Council  were  averse  to  the  contents  of  the  Directive  and 
questioned its need as  well as the competence of the European Union concerning social 
security  law.453  In  2012,  the  German  Government  stated  that  German  legislation  was 
already in accordance with the requirements of the Directive and therefore rejected any 
further  request  for  transposition.454  Self-employed  persons  are  only  covered  by 
Section 6(3)  of  the  General  Equal  Treatment  Act  transposing  Article 3(1)(a)  of 
Directives 2000/78 and 2002/73. 

  Personal scope 

8.2.1  Scope 

Self-employed persons are only covered by Section 6(3) of the General Equal Treatment 
Act  which  states  that,  insofar  as  the  conditions  for  access  to  gainful  employment  and 
promotion are affected, the provisions under Part 2 shall apply, mutatis mutandis, to the 
self-employed  and to members of an  organ  of  an enterprise, in particular directors and 
board members. 

In 2012, the Federal Court of Justice decided that a managing director with a fixed-term 
contract who re-applied for the post was protected against discrimination in their access 
to a self-employed activity under the General Equal Treatment Act.455 This decision was 
partly  misunderstood  as  an  extension  of  the  special  employees’  protection  against 
dismissal  to  self-employed  persons.  The  majority  of  legal  commentaries  continues  its 
adherence to the applicability of the General Equal Treatment Act to self-employed persons 
only  within  the  limited  scope  of  access  and  promotion  not  covering  working  conditions, 
equal pay or the termination of contracts.456 However, in 2019, the Federal Court of Justice 
decided  that,  in  conformity  with  European  law  and  taking  into  account  the  concept  of 
employee coined by the CJEU, a third-party managing director of a company with limited 
liability is to be regarded as an employee to the extent that the General Equal Treatment 
Act is applicable concerning the termination of his management service contract.457 

8.2.2  Definitions 

Under  German  law,  self-employed  persons  are  persons  who  pursue  a  gainful  activity 
without  instructions  by  others  and  for  their  own  account.  Differentiating  between 
dependent  and  ‘quasi-subordinate’  employees  protected  under  Section 6(1)  and  self-
employed  persons  or  freelancers  protected  under  Section 6(3)  of  the  General  Equal 
Treatment  Act  can  be  difficult  in  individual  cases  and  has  been  the  subject  of  rather 

452  See Barnard, C. and Blackham, A. (2015), Self-Employed: The implementation of Directive 2010/41 on the 
application of the principle of equal treatment between men and women engaged in an activity in a self-
employed capacity, European network of legal experts in gender equality and non-discrimination, available 
at: https://www.equalitylaw.eu/downloads/2732-self-employed-en. 

453  See Parliamentary Documents 16/13830 of 20 July 2009, p. 149: 

http://dipbt.bundestag.de/dip21/btd/16/138/1613830.pdf.  

454  Answer of Parliamentary State Secretary H. Kues to a request by the Social Democratic Party on 11 May 

2012, Parliamentary Documents 17/9615, p. 53, 
http://dipbt.bundestag.de/dip21/btd/17/096/1709615.pdf. 

455  Federal Court of Justice, judgment of 23 April 2012, II ZR 163/10.  
456  See Bauer, J. H. et al. (2011) ‘Section 6 Paragraphs 35 et seq’ Allgemeines Gleichbehandlungsgesetz. 
Kommentar, München 3rd ed; Schubert J. & Schrader, P. (2013) ‘Section 6 Paragraphs 31c et seq’ in 
Däubler, W. & Bertzbach, M. (ed.) Allgemeines Gleichbehandlungsgesetz. Handkommentar, Baden-Baden 
3rd ed.  

457  Federal Court of Justice, judgment of 26 March 2019, II ZR 244/17. 

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heterogeneous  case  law.458  The  main  criteria  are:  a  decisive  influence  on  working 
conditions, the authority to give instructions, competence to delegate the performance of 
duties, contractual  obligations to  one  or more employers or  clients and the  comparable 
need for social protection. 

8.2.3  Categorisation and coverage 

Legal commentaries disagree on the question of which groups of self-employed persons 
are covered by the General Equal Treatment Act. There are hundreds of professions in the 
field of self-employment and many of them are organised in associations that have  the 
right of self-regulation and their own social security systems. Generally, the opinion seems 
to be that organised self-employed persons would not need the protection of the General 
Equal  Treatment  Act  although  there  is  no  indication  that  the  internal  regulations  of 
professions  were  amended  to  implement  the  provisions  of  Directive 2010/41.  Some 
commentaries  restrict  the  scope  of  the  General  Equal  Treatment  Act  to  managing 
directors,459  members  of  company  boards  and  freelancers,460  while  some  commentaries 
suggest  a  broad  scope 
franchisees,  commercial  agents, 
shareholders and others.461 

including  consultants, 

The  professional  activities  of  most  self-employed  persons  in  Germany  are  covered  by 
regulations set by their professional associations.  Their  social  security is guaranteed by 
various professional pension funds (berufsständische Versorgungswerke) shaped by state 
law, by special federal regulations on social security (e.g. for the agricultural sector), or 
by  the  explicit  extension  of  the  statutory  social  security  systems.  Moreover,  there  are 
hundreds of professions in the field of self-employment and many of them are organised 
in  associations  with  the  right  of  self-regulation  and  their  own  social  security  systems, 
especially professional pension funds. Thus, self-employed persons are covered by various 
and very different federal and state laws, as well as professional regulations. 

8.2.4  Recognition of life partners 

In  2001,  life  partners  were  recognised  in  the  federal  laws  on  statutory  social  security 
systems and special federal laws concerning farmers. However, it was not until the 2009 
Federal  Constitutional  Court  decision  on  survivors’  pensions462  that  more  states  and  all 
professional  pension  funds  amended  their  regulations  and  practices  to  grant  survivors’ 
pensions  to  registered  life  partners  as  well  as  spouses.463  Since  2017,  life  partnerships 
have mainly been replaced by the option of same-sex marriage. 

458  Examples given by Willemsen, H.J. & Müntefering, M. (2008), ‘Begriff und Rechtsstellung 

arbeitnehmerähnlicher Personen’ (Concept and legal status of quasi-subordinate workers) Neue Zeitschrift 
für Arbeitsrecht, pp. 193-201.  

459  With reference to the Danosa decision of the CJEU, managing directors are equated with dependent workers 

and enjoy the full protection of the AGG, see Kort, M. (2013) ‘Sind GmbH-Geschäftsführer und 
Vorstandsmitglieder diskriminierungsschutzrechtlich Arbeitnehmer?’ Neue Zeitschrift für Gesellschaftsrecht 
16/2013, pp. 601-607. 

460  Bauer, J. H. et al. (2011), ‘Section 2 paragraph 16’, Allgemeines Gleichbehandlungsgesetz. Kommentar, 

München 3rd ed.  

461  Schmidt, M. (2007) ‘Section 6 Paragraphs 12-15’ in Schiek, D. (ed.) Allgemeines Gleichbehandlungsgesetz. 

Kommentar aus europäischer Perspektive, München 2007.  

462  Federal Constitutional Court, judgment of 7 July 2009, 1 BvR 1164/07. The judgment was based on the 

constitutional principle of equality.  

463  Some pension funds needed encouragement by the courts, see for example the State Administrative Court 

of North Rhine-Westphalia, judgment of 23 September 2010, 17 A 674/08.  

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  Material scope 

8.3.1  Implementation of Article 4 of Directive 2010/41/EU 

There is no specific legislation transposing Directive 2010/41/EU in Germany and therefore 
nearly no national legislation relating to equal treatment in self-employment. Concerning 
access and promotion, managing directors, members of company boards and freelancers 
can  invoke  the  regulations  of  the  General  Equal  Treatment  Act.  Other  self-employed 
persons can refer to the constitutional principle of equality, which has limited influence in 
civil law cases. 

8.3.2  Material scope 

As there was no implementation of Directive 2010/41/EU, the material scope cannot be 
compared to regulations specified in its Article 4. 

  Positive action 

Germany has taken advantage of the power to take positive action. In 1994, the state of 
North Rhine-Westphalia established a master’s foundation award for young entrepreneurs 
in the craft and trade sector with an application deadline of two years after the master’s 
examination  in  general  and  five  years  for  female  entrepreneurs.  In  2002,  the  Federal 
Administrative Court accepted the extended deadline as a means of positive action.464 In 
August  2014,  the  Federal  Ministry  of  Economics  and  the  Federal  Ministry  for  Family, 
Seniors, Women and Youth presented an initiative for the empowerment and support of 
female business start-ups and entrepreneurs.465 Although it is controversial whether the 
advancement of women might be a condition for awarding public contracts, some states 
have set relevant regulations for contracts of a certain volume and larger contractors. 

  Social protection 

There  are  highly  differentiated  social  protection  structures  for  self-employed  persons. 
There are special provisions for some groups of self-employed persons, e.g. in crafts and 
commerce. There are independent social security systems for farmers and their assisting 
family members as well as for self-employed artists and publicists. 

All  members  of  professions  with  the  right  to  form  associations  for  self-regulation, 
especially  the  liberal  professions,  are  covered  by  one  of  the  many  professional  pension 
funds (berufsständische Versorgungswerke) in Germany. Every one of these professions 
has its own pension fund in every German state and is authorised on the legal basis of its 
own state law. Only a very few of these many special laws deal with questions of gender 
equality. Nearly all of these systems cover invalidity, old-age or survivors’ benefits, some 
sickness  and  long-term  care  and  some  work  accidents,  but  all  under  very  different 
requirements and financing systems. 

Some  groups  of  self-employed  persons  have  the  option  of  voluntary  unemployment 
insurance  within  the  statutory  system  but  the  contributions  have  been  multiplied  since 
2006  (from  under  EUR 18  to  around  EUR 90  per  month).  Moreover,  this  option  can  be 
used  only  by  former  employees  who  have  contributed  to  the  statutory  unemployment 
system for at least 12 months during the last 24 months. 

464  Federal Administrative Court, judgment of 18 July 2002, 3 C 54/01. See Hinrichs, O. & Zimmer, R. (2013) 
‘Section 5 Paragraph 38’ in Däubler, W. & Bertzbach, M. (eds.) Allgemeines Gleichbehandlungsgesetz. 
Handkommentar (Commentary on the General Equal Treatment Act), 3rd ed. Baden-Baden, on positive 
action through awarding subsidies.  

465  See https://www.bmfsfj.de/resource/blob/83098/a0b7288769bb9e13541dcfd124527783/strategiepapier-

frauen-gruenden-data.pdf. 

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The agricultural social security system covers helping spouses or life partners,466 in craft 
and  commerce  the  social  security  status  of  helping  spouses  and  life  partners  has  to  be 
defined with binding effect  for the  social security funds, and the regulations concerning 
professional pension funds vary significantly. 

  Maternity benefits 

Article 8 of Directive 2010/41/EU regarding maternity benefits for self-employed persons 
has  not  been  implemented  in  German  law.  Only  self-employed  artists  and  publicists  as 
well  as  helping  family  members  in  the  agricultural  sector  are  entitled  to  maternity 
allowances  under  special  regulations.  Self-employed  women  can  apply  for  parental 
allowance, but in principle they are not entitled to the statutory maternity leave periods 
or to the payment of maternity leave allowance because they are neither employees nor 
in education. They are only entitled if they are voluntarily insured with a statutory health 
insurance fund with the right to sickness benefits. 

Self-employed female artists and publicists who are compulsorily insured in the statutory 
health insurance through the Artists’ Social Insurance Fund (KSK) are usually entitled to 
maternity pay in the amount of 70 % of the standard salary six weeks before and eight 
weeks after childbirth. 

Self-employed women with private health insurance can maintain daily sickness allowance 
insurance. The health insurance company pays the agreed daily sickness allowance and 
thus  compensates  the  loss  of  earnings  that  occurs  during  the  protection  periods  of  the 
Maternity Protection Act and on the day of childbirth.467 

  Occupational social security 

8.7.1  Implementation of provisions regarding occupational social security 

German  law  implemented  the  provisions  regarding  occupational  social  security  for  self-
employed persons only  to a very small extent. Under  Section 17(1) of the Occupational 
Pension Schemes Act, persons who are not employees can invoke the regulations of the 
Act when they were guaranteed benefits for retirement, invalidity, or for surviving family 
members on the occasion or as a result of their self-employed work for an enterprise. This 
happens  very  rarely  in  practice  and  generally  only  for  some  sales  representatives  or 
managing directors. 

8.7.2  Application  of  exceptions  for  self-employed  persons  regarding  matters  of 

occupational social security (Article 11 of Recast Directive 2006/54) 

German  law  has  not  made  use  of  the  exceptions  for  self-employed  persons  regarding 
matters  of  occupational  social  security  as  mentioned 
in  Article 11  of  Recast 
Directive 2006/54. 

  Prohibition of discrimination 

Self-employed persons are covered by Section 6(3) of the General Equal Treatment Act, 
which  transposes  Article 3(1)(a)  of  Directives  2000/78  and  2002/73.  Consequently,  the 
prohibition of gender-based discrimination against self-employed persons is restricted to 
access  to  self-employed  activities  and  promotion.  It  is  strongly  contested  whether  self-
employed persons can invoke Section 19 of the General Equal Treatment Act (transposing 

466  The Federal Social Court, judgment of 12 February 1998, B 10/4 LW 9/96 R, decided that the co-insurance 

of spouses in the agricultural sector is in compliance with European Directives 79/7 and 86/613.  

467  Overview see, Wissenschaftliche Dienst, Maternity benefits for the self-employed (Mutterschaftsleistungen 
für Selbständige) www.bundestag.de/resource/blob/910066/1601cd8bcf48433ed2967f205f4ca584/WD-9-
055-22-pdf-data.pdf. 

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requirements of Directive 2004/113) against discrimination concerning working conditions 
or the discriminatory termination of self-employment contracts.468 The courts have not yet 
confirmed this possibility. 

  Evaluation of implementation 

Section 6(3)  of  the  General  Equal  Treatment  Act  transposes  Article 3(1)(a)  of 
Directives 2000/78  and  2002/73.  In  breach  of  European  law,  there  is  no  explicit 
implementation  of  Directive 2010/41/EU  and,  thus,  no  effective  protection  of  self-
employed  women  against  discrimination  on  the  grounds  of  sex/gender,  sexual 
harassment, maternity discrimination, lower income, lesser social security coverage, and 
poverty in old age. It would be very much desirable if Germany finally implemented the 
Directive. 

 Remaining issues 

There are no remaining issues. 

468  See Thüsing, G. (2007), Arbeitsrechtlicher Diskriminierungsschutz, Paragraph 94, Munich.  

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9 

Goods and services (Directive 2004/113)469 

  General (legal) context 

9.1.1  Specific  problems  of  discrimination 
market / collaborative economy 

in 

the  online  environment / digital 

The limits and challenges  that algorithmic discrimination and the collaborative economy 
pose for the existing Equality Law Framework are being explored. 

This includes the limited scope of the General Equal Treatment Act, the unclear scope of 
the  notion  of  indirect  discrimination  that  undermines  its  potential,  and  difficulties  with 
demonstrating the existence of biases, in particular due to the lack of transparency of AI 
systems.470 Some legal authors point out that algorithmic bias and discrimination are well-
known,  but  can  only  be  tackled  if  anti-discrimination  law  is  changed  and  its  effective 
enforcement is ensured. Indeed, it has been highlighted that the General Equal Treatment 
Act  only  challenges  the  unequal  treatment,  that  is  the  decision  to  disadvantage. 
Algorithmic outputs as such are not affected by the prohibition of discrimination.471 A study 
on ‘Algorithmic Accountability’, funded by the Federal Ministry for Education and Research, 
was published in October 2018.472 Under the heading ‘non-discrimination law’, the author 
points out that the obligation of equal treatment is  primarily a state obligation and only 
exceptionally an obligation for private parties (who use algorithmic decision-making – ADM 
– procedures). It goes on to reflect upon the deficiencies of the General Equal Treatment 
Act  concerning  goods  and  services  as  well  as  enforcement  of  the  law  and  the  need  for 
accountability  by  design,  algorithmic  impact  assessment,  algorithm  auditing  and  self-
regulation.  Further  studies  are  on  their  way.473  As  such,  legal,  political,  and  technical 
solutions to digital discrimination and its challenges are still being explored. 

Algorithm Watch has published an open letter pointing out the needed reforms to ensure 
that the General Equal Treatment Act can address digital and algorithmic discrimination. 
Within it, they ask for an expansion in scope to include fully or partly automated decision-
making processes, an expansion of protected characteristics (to be non-exhaustive), the 
prohibition of objective discrimination when victims are not clearly identifiable, recognition 
of  intersectional  discrimination,  the  possibility  of  a  class  or  representative  action, 
obligations  to  carry  out  regular  and  mandatory  impact  assessments,  and  a  right  to 
information  for  anti-discrimination  and  counselling  centres.474  While  creating  a  non-
exhaustive list of protected characteristics can be problematic, as it will also expand the 
scope  for  justifications,  any  reform  will  certainly  have  to  address  how  patterns  and 
structures  that  are  not  directly  linked  to  the  protected  characteristic  but  nevertheless 

469  See e.g. Caracciolo di Torella, E., Directive 2004/113EC on Gender equality in goods and services – In 

search of the potential of a forgotten Directive (2021), European network of legal experts in gender equality 
and non-discrimination, available at: https://www.equalitylaw.eu/downloads/5614-directive-2004-113-ec-
on-gender-equality-in-goods-and-services-in-search-of-the-potential-of-a-forgotten-directive-1-38-mb. 

470  For a recent example, see von Ungern-Sternberg, Antje (2022), Protection against discrimination in 

algorithm-based decisions (Diskriminierungsschutz bei algorithmenbasierten Entscheidungen) in Mangold 
und Payandeh (eds) Handbuch Antidiskriminierungsrecht (Mohr Siebeck) 1131-1180. 

471  Fröhlich, W. & Spiecker genannt Döhmann, I. (2018), Können Algorithmen diskriminieren? (Are algorithms 

able to discriminate?), https://verfassungsblog.de/koennen-algorithmen-diskriminieren/.  

472  Busch, C. (2018), Algorithmic Accountability, Studie im Rahmen des BMBF-Projekts „Assessing Big Data“ 

(ABIDA), 80 pp. available at: https://bit.ly/2OVdsI0.  

473  Spiecker gen. Döhmann, I. and V. Towfigh, E. (forthcoming 2023), 'Das Allgemeine 

Gleichbehandlungsgesetz und der Schutz vor Diskriminierung durch algorithmische Entscheidungssysteme'. 

474  Algorithm Watch (2023), Offener Brief: Jetzt algorithmenbasierte Diskriminierung anerkennen und 

Schutzlücken schließen! (Open letter: Recognise algorithm-based discrimination now and close gaps in 
protection!) https://algorithmwatch.org/de/offener-brief-diskriminierung-allgemeines-
gleichbehandlungsgesetz/. 

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create  disadvantages,  can  be  addressed  under  the  General  Equal  Treatment  Act.  The 
concept of indirect sex discrimination seems to play a major role here.475 

9.1.2  Political and societal debate 

The  Third  Gender  Equality  Report476  focuses  on  gender  equality  within  digitalisation.  It 
identifies various barriers hindering women from being active within and benefiting from 
digitalisation  and  digital  economies.  Among  other  things,  it  refers  to  different  skill 
development, gender stereotypes within the digital economy, gender disadvantages of the 
platform  workers  (and  their  uncertain  status),  and  protection  from  algorithmic 
discrimination. While much of the report focuses on the digitalisation of the labour market, 
it  also  focuses  on  the  digital  economy’s  engagement  with  customers  (algorithms)  and 
recommends  a  risk  assessment  and  relegation  of  algorithms  to  ensure  they  do  not 
discriminate. Cyber and online violence was also highlighted. 

There are lively legal discussions on regulating the collaborative economy, especially the 
platforms for new digital markets, and on the effects of platform-based peer provision in 
the  housing  market  and  local  taxi  markets.  The  market  concept  of  Uber  has  been 
prohibited  in  several  German  states  due  to  unsolved  issues  in  relation  to  the  working 
conditions of the drivers, general safety and insurance problems for the customers. The 
market  concept  of  Airbnb  has  been  affected  by  local  and  regional  regulation  on  the 
subleasing  of  living  space  or  the  renting  of  holiday  apartments  and  its  effects  on  the 
housing market.  Neither the taxi nor the housing regulations deal with or  even refer to 
questions of sex/gender discrimination. It is obvious that sexual harassment might be a 
problem,  especially  in  car  sharing  and  room  sharing,  but  this  question  has  not  been 
discussed in legal discourse, the media or in public debate. Gender-segregated work and 
the gender pay gap may also be problems in this area, but there is absolutely no available 
data about the German situation in relation to such issues.477 In a 2017 paper on digital 
politics published by the Federal Government, the term ‘discrimination’ is employed but 
only  in  the  context  of  consumer  protection  and  data  protection,  whereas  anti-
discrimination law is not mentioned.478 

The possible gender biases of algorithms and artificial intelligence have been considered 
in  legal  literature  and  political  discourse.  The  extent  to  which  digital  decision-making 
processes challenge the scope and methods of the General Equal Treatment Act and the 
need  for  additional  legal  instruments  are  being  discussed.  Some  authors  suggested 
amendments to the General Equal Treatment Act, expanding the scope of application to 
unequal  treatment  between  private  individuals  based  on  an  algorithm-based  data 
evaluation or an automated decision procedure, or the introduction of a ‘digital General 
Equal Treatment Act’, and politicians have pointed out that ‘bans on discrimination in the 
analogue world must also apply in the digital world of algorithms’. However, there is limited 
available  data  demonstrating  how  algorithms  indeed  discriminate  within  the  specific 
German context as most works rely on studies from the USA.479 

475  Mulder (2021), Indirect sex discrimination in employment: Theoretical analysis and reflections on the CJEU 
case law and national application of the concept of indirect sex discrimination, Luxembourg: Publications 
Office of the European Union.  

476  Federal Government (2021), Third Gender Equality Report, Berlin, with further references; available at: 

https://www.gleichstellungsbericht.de/. 

477  One article in German that at least mentions the problem, although it refers to the USA situation, can be 

found here: https://broadly.vice.com/de/article/j5eey4/ein-fremder-in-meinem-haus-wie-sicher-ist-die-
sharing-economy-fuer-frauen. There are a few articles that report findings on racist discrimination in room 
sharing – but again, not as a topic in Germany. An interesting analysis is given by Kullmann, M. (2018), 
‘Platform Work, Algorithmic Decision-Making and EU Gender Equality Law’ International Journal of 
Comparative Labour Law and Industrial Relations, Vol 34 No 1, pp. 1-21.  

478  Paper on digital politics of June 2017, http://www.bmwi.de/Redaktion/DE/Publikationen/Digitale-

Welt/digitalpolitik.pdf.  

479  However, there is an increasing body of research developing. Algorithm Watch, ‘Automated Decision-

Making Systems and Discrimination’ https://algorithmwatch.org/en/wp-
content/uploads/2022/06/AutoCheck-Guidebook_ADM_Discrimination_EN-AlgorithmWatch_June_2022.pdf.  

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Since 2017, activists against gender stereotyping have been awarding the Golden Fence 
Post,  a  negative  prize  for  gender  marketing,  to  highlight  the  worst  outgrowths  of  this 
widespread advertising strategy.480 The strategy of gender marketing (with EUR 45 billion 
annual turnover) sells a world in which not only colours, but also interests, behaviours and 
characteristics are strictly separated by gender. This is especially aimed at children. There 
is  nearly  nothing  that  is  not  sold  in  a  version  for  boys  and  another  one  for  girls  (toys, 
children’s clothing, books, bibles, baby pacifiers, drinking water, cucumbers, salt, crisps, 
sweets, globes, wellington boots, etc.). Goods sold in two separate markets mean double 
profit, but the harmful gender stereotypes are part of the package. The proportion of girls 
and boys with eating disorders and body image disturbance is rising, and the increasing 
gender-segregation of the labour market has many reasons, including the discriminatory 
images  that  we  see  everywhere.  Some  legal  authors  and  politicians  have  called  for  the 
prohibition of sexist, misogynist and discriminatory advertisements.481 

  Prohibition of direct and indirect discrimination 

Access to and supply of goods and services available to the public, including housing, is 
explicitly covered by the General Equal Treatment Act (Section 2(1) Nos. 8 and 19) and 
the standard definitions of direct and indirect discrimination apply. 

There  is  very  little  case  law  concerning  sex/gender  discrimination  within  the  context  of 
goods and services. The District Court of Berlin awarded compensation of EUR 300 for the 
non-pecuniary damage suffered by an applicant who had been prevented from entering a 
club by a doorman who said: ‘You are too many men.’482 The court rejected the alleged 
justification of the operator that he just preferred a sex/gender-heterogeneous clientele. 
‘Disco cases’ are typically discussed within the context of intersectional discrimination, as 
ethnic minority men are being prevented from entering establishments, which often relates 
to racist assumptions about their aggressive and sexist behaviour. 

Most  recently,  trans-issues  have  been  recognised  by  a  number  of  courts,  as  the 
requirements  to  choose  Mr  or  Mrs  within  the  online  purchasing  context  are  being 
challenged.  In  2022,  the  Higher  Regional  Court  (OLG)  Frankfurt483  confirmed  that  this 
constituted  direct  sex  discrimination  under  the  scope  of  the  General  Equal  Treatment 
Act.484 The lower court had recognised that reference to Mr or Mrs only interfered with the 
general personal right to autonomy of people with a non-binary gender identity but denied 
any  right  for  compensation  under  the  General  Equal  Treatment  Act,  because  the 
interference was neither malicious nor severe.485 

In  2018,  the  Federal  Court  of  Justice  ruled  that  the  ‘generic  masculine’  is  gender-
neutral.486 The use of the generic masculine was first challenged by a savings bank client 
who asked her bank to use the female term in all  standardised forms addressed to her. 
Her claim was rejected as the Federal Court of Justice ruled that the ‘generic masculine’ 
was  neutral  and  did  not  discriminate  against  her.487  The  case  was  widely  criticised  for 

480  See https://goldener-zaunpfahl.de/.  
481  Fundamental: Völzmann, B. (2015), Geschlechtsdiskriminierende Wirtschaftswerbung. Zur Rechtmäßigkeit 

eines Verbots geschlechtsdiskriminierender Werbung im UWG (Gender-Discriminatory Economic 
Advertising. The Legality of a Prohibition of Gender Discriminatory Advertising in the Unfair Competition 
Act), Baden-Baden: Nomos. 

482  District Court of Berlin, judgment of 24 February 2011, 6 C 544/09. 
483  Higher Regional Court (OLG) Frankfurt am Main, judgment of 21 June 2022, 9 U 92/20; Regional Court 

(LG) of Frankfurt am Main, judgment of 3 December 2020, AZ: 2-13 O 131/20. 

484  Higher Regional Court (OLG) Frankfurt am Main, judgment of 21 June 2022, 9 U 92/20. See also Higher 

Regional Court (OLG) Karlsruhe judgment of 14 December 2021, 24 U 19/21; Regional Court (LG) Frankfurt 
am Main, judgment of 26 August 2021, 2-30 O 154/21. 

485  Regional Court (LG) of Frankfurt am Main, judgment of 3 December 2020, AZ: 2-13 O 131/20. 
486  Federal Court of Justice, judgment of 13 March 2018, VI ZR 143/17.  
487  Federal Court of Justice, judgment of 13 March 2018, VI ZR 143/17.  

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ignoring  recent  linguistic  research  and  systemic  gender  inequality.488  The  claimant’s 
constitutional complaint was unsuccessful because it was deemed inadmissible.489 The role 
of Article 3(2) Basic Law imposing a duty on the state to promote gender equality, is thus 
still uncertain.490 The case was special in that the State Equality Act did oblige such savings 
banks  to  use  gender-neutral  language  as  institutions  under  public  law.  However,  the 
Federal Court of Justice rejected that the applicant had a subjective individual claim to the 
application of the law. The most recent decision on gender-sensitive language has come 
full circle and challenged the use of ‘gendering’ or gender gap (meaning a gap between 
the male and female addressees to recognise non-binary people). The claimant was a man 
who requested the use of the masculine to address him in correspondence with his gender. 
The court in Ingoldstadt rejected his claim with reference to the above-mentioned case. 
Indeed,  if  the  generic  masculine  includes  women,  it  is  difficult  to  see  how  the  use  of  a 
gender gap can be problematic, even if it does not include a male ending, but indicates 
their inclusion with a dash.491 Courts have also accepted the use of an asterisk (*) between 
the male and female endings to include non-binary or intersex people.492 

  Material scope 

The  wording  of  the  General  Equal  Treatment  Act  concerning  goods  and  services  differs 
significantly from Article 3 of Directive 2004/113 and seems more restrictive. 

The  national  provisions  are  restricted  to  contracts  concluded  under  civil  law.  For  the 
provision of goods and services under public law, the principle of equality contained in the 
German Constitution applies. This means that harassment and sexual harassment are not 
considered to be discrimination in this area493 and the special  rules  on  support by anti-
discrimination organisations do not apply. 

Section 19(1)  No. 1  of  the  General  Equal  Treatment  Act  refers  to  the  establishment, 
implementation and termination of civil law obligations, which typically come about without 
regard to the person under comparable conditions in a large number of cases (so-called 
mass  transactions)  or  in  which  the  reputation  of  the  person  is  of  minor  importance 
according to the nature of the obligation and which are concluded on comparable terms in 
a  large  number  of  cases.  Section 19(1)  No. 2  specifically  refers  to  private  insurance 
contracts. 

Whether  this  implements  the  EU  Directive  faithfully  has  been  discussed  controversially. 
Specifically, it has been questioned whether the reference to ‘irrespective of the person’ 
in  Article 3(1)  Directive 2004/113/EC  indicates  that  the  scope  should  be  distinguished 
from Directive 2000/43/EC and thus allows such a limitation of the material scope (here: 
‘without regard to the person’) in the context of sex. While some confirm this by reference 
to the different wording,494 it has been pointed out that ‘irrespective of the person’ simply 
clarifies the meaning of ‘available to the public’ and thus does not indicate an additional 
criterion.495 Accordingly, the material scope of both directives should not be distinguished 
in that respect and the General Equal Treatment Act’s scope is too restrictive. Moreover, 
it  is  questioned  whether  the  additional  criterion  (i.e.  concluded  under  ‘comparable 

488  Mangold (2018), Frauen sind mitgemeint…? (Women are included...?), www.verfassungsblog.de/frauen-

sind-mitgemeint. 

489  Federal Constitutional Court, judgment of 26 May 2020, 1 BvR 1074/18, Rn. 1-8, 

ECLI:DE:BVerfG:2020:rk20200526.1bvr107418. 

490  See Grünberger, M. (2018), ‘Das “generische Maskulinum” vor Gericht’ (The generic masculine before the 

court), in JuristenZeitung, Vol. 73 No. 14, pp. 719-727.  

491  Regional Court (LG) Ingolstadt, judgment of 29 July 2022 no 83 O 1394/21.  
492  Higher Labour Court Schleswig-Holstein, 22 June 2021, 3 Sa 37 öD/21. 
493  This conclusion is not compulsory, see Baer, S. (1995), Würde oder Gleichheit (Equality or Dignity), Baden-

Baden, on the concept of sexual harassment as sex discrimination prohibited by the Constitution.  

494  Franke and Schlichtmann (2022), Section 19, in Däubler, W. (ed.) Kommentar Allgemeines 

Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden, recital 7. 

495  Schiek, D. (2007) ‘Section 19’ in Schiek, D. (ed.) Allgemeines Gleichbehandlungsgesetz. Kommentar aus 

europäischer Perspektive, München 2007, recital 17. 

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conditions  in  a  large  number  of  cases’)  further  distinguishes  the  material  scope  of  the 
Directive. While the wording is clearly absent in the Directive, some have argued that this 
only further clarifies the meaning of ‘irrespective of the person’.496 This reasoning can only 
be followed if ‘irrespective of the person’ is indeed its own criterion, which is doubtful with 
reference  to  its  EU  origins.  As  such  Section 19(1)1  is  inconsistent  with  the  Directive.497 
The  broader  scope  in  relation  to  disadvantages  based  on  race  or  ethnic  origin 
(Section 19(2)) should have been extended to sex/gender disadvantages. 

A landlord who rents out up to 50 apartments does not fall under the provision, and nor 
do  contracts  that  will  bring  the  parties  into  relationships  of  trust  or  into  close  spatial 
contact, e.g. both parties being housed on the same piece of land. However, courts have 
interpreted  some  of  the  terms  broadly.  For  example,  the  establishment  of  contractual 
obligations  (Begründung  eines  Schuldverhältnisses)  does  not  only  refer  to  concrete 
contract  initiations,  it  also  includes  situations  where  the  conclusion  of  the  contract  is 
prevented (Verhinderung geschäftlicher Kontakte).498 

Section 3(4)  of  the  General  Equal  Treatment  Act  concerned  with  sexual  harassment  is 
restricted to the area of employment.499 

  Exceptions 

German law has applied the exceptions from the material scope as specified in Article 3(3) 
of  Directive 2004/113,  regarding  the  content  of  media,  advertising  and  education.  The 
General  Equal  Treatment  Act  does  not  cover  media  and  advertising,  and  although 
Section 2(1)(7) of the Act mentions education, the Act does not cover specific claims in 
this field, probably due to the fact that state law on this topic is various but exhaustive. 
However,  there  are  some  specific  local  bans,  such  as  a  prohibition  of  discriminatory 
advertisements.500 

  Justification of differences in treatment 

Differences in treatment in the provision of the goods and services can be justified under 
German  law.  Under  Section 20(1)  of  the  General  Equal  Treatment  Act,  differential 
treatment based on sex is permitted in the provision of goods and services if there is an 
objective  reason 
is  wider  than  Article 4(5)  of  the 
Directive 2004/113/EC. According to academic writing, the national rule can and must be 
read in line with the EU law, that requires a legitimate aim and that the means of achieving 
that aim are appropriate and necessary.501 Examples  of  ‘objective  reasons’ given in the 
General Equal Treatment Act are the prevention of danger or harm to others, or the need 
to protect privacy or personal security. 

for  this.  This 

formulation 

The  discussion  around  the  need  for  protective  women’s  spaces  has  intensified  recently 
within  the  context  of  the  proposed  Self-Determination  Act  and  the  presumed  need  to 
ensure that the rights under the Act are not abused to gain illegitimate access to women-
only spaces, such as female saunas, which has led to a narrowing of the proposed rights. 
There is very little case law on the justification in relation to gender. 

496  Franke and Schlichtmann (2022), Section 19, in Däubler, W. (ed.) Kommentar Allgemeines 

Gleichbehandlungsgesetz, 5th Edition, Nomos, Baden-Baden, recital 7. 

497  Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, p. 116.  

498  Higher Regional Court (OLG) Frankfurt am Main, judgment of 21 June 2022, 9 U 92/20. 
499  According to the prevailing opinion of legal commentaries, this restriction is not applicable in the civil 

service and has to be eliminated for the provision of goods and services in order to be consistent with the 
directives. 

500  For example in Berlin, www.berlin.de/sen/lads/beratung/diskriminierung/diskriminierende-werbung/. 
501  Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, p. 121, 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/AGG/agg_evaluation.p
df?__blob=publicationFile&v=12.  

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Considering Section 20(1)2 No. 1 in relation to the prevention of damage indicates that 
the business concept can matter within the context. A hotel’s decision to exclude children 
under 16 years old from its premises was considered justified because the hotel’s purpose 
to ensure calm and wellness was an objective reason.502 In a similar ‘adults only’ case, the 
Supreme Court decision does balance the interests within the context of the proportionality 
of the measure and possible less restrictive measures but gives heavy weight to economic 
considerations of the hotel owner.503 While these cases were considered under the scope 
of  age  discrimination,  it  is  not  difficult  to  see  how  the  exclusion  of  children  has  a 
detrimental  impact  on  women,  especially  single  parents.  Considering  20(1)2  No. 3 
‘allowing  for  special  advantages  when  there  is  no  interest  in  the  enforcement  of  equal 
treatment’, the courts have accepted cheaper or free entry of women into clubs,  singles 
websites, and similar events.504 The Regional Court Memmingen confirmed the entitlement 
of the female member of an association to be admitted to a subgroup of the association 
traditionally reserved for men but based this on the association’s own statutes and not on 
the  General  Equal  Treatment  Act.505  In  the  opinion  of  the  Court  the  member  was  not 
disadvantaged  within  the  meaning  of  the  latter,  because  her  essential  interest  had  not 
been violated. Indeed, it held that the plaintiff was able to participate in a variety of ways 
in the social life in the city, in the club life and in the Fishermen’s Day. By not allowing her 
to participate in the ‘fish out’ (as this was the privilege of the subgroup), she did not suffer 
any  serious  disadvantage.  The  plaintiff’s  general  policy  objective  of  enforcing  equality 
between women and men was not considered a sufficient interest of the plaintiff. 

  Actuarial factors 

In 2012, the Single Euro Payments Area (SEPA) accompanying Act implemented the Test-
Achats  ruling.506  Since  21 December  2012,  any  sex/gender  differentiation  by  private 
insurance companies is prohibited. Further necessary legislative amendments are not to 
be  expected.  Quite  the  contrary,  the  implementation  of  the  Test-Achats  ruling  caused 
severe  resentment  among  legal  experts  and  practitioners  and  the  call  for  a  stronger 
consideration of private autonomy and entrepreneurial freedom.507 

  Interpretation of exception contained in Article 5(2) of Directive 2004/113 

In 2013, amendments to the SEPA-accompanying Act implementing the Test-Achats ruling 
entered into force with the consequence of increasing insurance rates for both sexes. This 
is  how  the  exception  of  Article 5(2)  of  Directive 2004/113  has  been  interpreted  in 
Germany.  In  2012,  the  Federal  Court  of  Justice  had  to  decide  on  the  classification  of  a 
transsexual member of a private health insurance scheme after her male-to-female gender 
reassignment.508 The claimant entered the insurance contract as a male and was insured 
under the tariff conditions of a male. The claimant had undergone surgical male-to-female 
gender reassignment but did not file an application for legal recognition of her new sex 
because she was married. The insurance company classified the claimant as female and 
thus the claimant had to pay the higher insurance rates for women. The court decided that 
the insurance company was not entitled to make an amendment to the insurance contract 
under the applicable law. After the implementation of the Test-Achats ruling, such cases 
no longer needed any adjudication. 

502  Regional Court (LG) Hannover, judgment of 23 January 2013, 6 O 115/12. 
503  Federal Supreme Court, judgment of 27 May 2020, VIII ZR 401/18. 
504  District Court (AG) Gießen, judgment of 26 May 2011, 47 C 12/11. 
505  District Court (AG) Gießen, judgment of 26 May 2011, 47 C 12/11. 
506  Amendment of Section 20 of the General Equal Treatment Act by the SEPA-accompanying Act (SEPA-

Begleitgesetz) of 8 April 2013, Official Journal (Bundesgesetzblatt BGBl), part I p. 610.  

507  See Heese, M. (2012) ‘Offene Preisdiskriminierung und zivilrechtliches Benachteiligungsverbot’ Neue 
Juristische Wochenschrift 9/2012, pp. 572-577. Immediately after the adoption of the General Equal 
Treatment Act, jurists rejected the idea that sex-differentiated tariffs for haircutting or dating portals or 
agencies free of charge for women or ‘ladies’ nights’ might cause inconsistencies with the prohibition of 
sex/gender discrimination, see Rath, M. and Rütz, E. M. (2007) ‘Ende der “Ladies Night”, der “Ü-30-Parties” 
und der Partnervermittlung im Internet?’ Neue Juristische Wochenschrift 21/2007, pp. 1498-1500. 

508  Federal Court of Justice, judgment of 9 May 2012, IV ZR 1/11.  

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  Positive action measures (Article 6 of Directive 2004/113) 

Under  Section 20(1)  of  the  General  Equal  Treatment  Act,  the  granting  of  special 
advantages is allowed where there is no interest in enforcing equal treatment. 

The  State  Labour  Court  of  Rhineland-Palatinate  decided  that  the  higher  risk  of  (sexual) 
violence  against  women  justifies  the  preference  of  female  employees  when  awarding 
company parking spaces close to the workplace.509 The District Court of Gießen held that 
the free membership of a dating portal for women (while men have to pay the full tariff) 
is  justified  by  the  intended  gender  balance  of  the  members  and  the  broader  partner 
selection possibilities for the male members.510 The Berlin-Mitte District Court considered 
reduced  prices  for  public  transport  for  women  (Frauenticket)  on  ‘Equal  Pay  Day’  to 
constitute a positive action that is suitable to compensate disadvantages related to lower 
average income and the gender pay gap. It thus considered it to be objectively justified. 511 

  Specific problems related to pregnancy, maternity or parenthood 

Although costs related to pregnancy and maternity may never result in different premiums 
and bonuses under Section 20(2)(1) of the General Equal Treatment Act, private health 
insurance policies terminate the membership of pregnant women512 or exclude benefits for 
pregnancy and childbirth from the beginning.513 

Moreover, breastfeeding mothers frequently report that they are denied certain services, 
e.g. in restaurants, when they bring their infants with them, and that they are thrown out 
of public institutions, such as museums, or private property, such as restaurants or cafés, 
when  breastfeeding  there514  or  that  they  are  harassed  for  (even  the  most  discreet) 
breastfeeding in public  until they decide to stay at home. Breastfeeding in public is not 
prohibited but it is generally acknowledged that the law enables owners or operators to 
exclude  breastfeeding  mothers.  However,  one  may  wonder  whether  breastfeeding  does 
justify  exclusion,  considering  that  in  many  cases,  such  an  exclusion  is  nothing  but 
unjustified maternity discrimination in access to goods and services. It does not help that, 
in some areas, the local authorities started to identify and publicise ‘breastfeeding-friendly’ 
places,515 strengthening the idea that maternity discrimination is likely to be the norm and 
non-discrimination  the  exception.  Midwives  have  demanded  legal  clarification  of  the 
situation. 

 Evaluation of implementation 

Since the adoption of the General Equal Treatment Act in 2006, the German legislature 
has  been  doing  nothing  to  fully  implement  Directive 2004/113/EC.  National  law  still 
requires the element of fault, and does not cover sexual harassment, provisions by public 
authorities,  the  prohibition  of  victimisation,  or  the  requirement  of  proportionality,  and 
applies only to ‘mass contracts’. 

 Remaining issues 

There are no remaining issues. 

509  State Labour Court of Rhineland-Palatinate, judgment of 29 September 2011, 10 Sa 314/11.  
510  District Court of Gießen, judgment of 26 May 2011, 47 C 12/11.  
511  District Court of Berlin-Mitte, judgment of 4 August 2020, 16 C 5033/19. 
512  The Higher Regional Court of Hamm, judgment of 12 January 2011, 20 U 102/10, I-20 U 102/10, awarded 

compensation of EUR 2 000 for non-pecuniary harm.  

513  The District Court of Hannover, judgment of 26 August 2008, 534 C 5012/08, rejected a pregnant 

applicant’s claim for compensation.  

514  See http://www.eltern.de/baby/0-3-monate/stillen-in-der-oeffentlichkeit.html.  
515  See http://www.noz.de/deutschland-welt/gut-zu-wissen/artikel/461863/stillen-in-der-offentlichkeit-die-

brust-des-anstosses.  

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10  Violence  against  women  and domestic violence  in  relation to  the Istanbul 

Convention516 

 General (legal) context 

10.1.1 Surveys and reports on issues of violence against women and domestic violence 

As noted by GREVIO’s 2022 report on the implementation of the Istanbul Convention in 
Germany,  there  is  a  significant  lack  of  data  available  within  the  German  context.  This 
hampers the effective prevention of domestic violence. While various institutes do collect 
data,  these  are  so  fragmented  that  it  is  not  possible  to  fully  record  gender-based  and 
domestic  violence.  The  data  should  be  disaggregated  and  harmonised  according  to  the 
gender and age of the victims and the perpetrators, their relationship, their geographical 
location and the nature of the violence.517 Within that context an Independent Reporting 
Office  on  Gender-Based  Violence  was  established  in  November  2021.  According  to  the 
current Government its aim is to create a broad and reliable database in order to  track 
trends and developments in relation to gender-based violence. Moreover, it is intended to 
show where action needs to be taken in preventing and combating gender-based violence. 
It will periodically present comprehensive reports on the scope and extent of gender-based 
violence and on the implementation of the Istanbul Convention. The first report is expected 
in  2024.518  The  University  of  Tübingen  currently  conducts  a  study  (2022-2025) 
investigating the social context and motives for murders of women in four states to develop 
an understanding of the context and extent of femicides in Germany.519 GREVIO’s 2022 
(Baseline) Evaluation Report refers to the 2014 study by the European Fundamental Rights 
Agency  on  the  extent  of  violence  against  women  in  Europe520  and  the  2004  study 
mentioned above. More recent studies providing general figures could not be identified, as 
GREVIO also identify serious gaps in the collection of data. 

In 2004, a representative study on violence against women in Germany was published.521 
The study found that 40 % of all women reported that they had been victims of physical522 
or sexual violence at least once since their 15th birthday; 37 % reported physical violence, 
two thirds of them of a more serious nature and more than half of them with injuries and 
after-effects. The authors of the study decided to include only restricted understandings 
of rape or sexual coercion punishable under the criminal law at the time. Even so, 13 % 
of the women surveyed reported such forms of sexual violence (if severe forms of sexual 
harassment with subsequent physical or sexual violence or serious threat were taken into 

516  See for more information: Nousiainen, K. and Chinkin, C. (2015), Legal implications of EU accession to the 

Istanbul Convention, European network of legal experts in gender equality and non-discrimination, 
available at: https://www.equalitylaw.eu/downloads/3794-legal-implications-of-eu-accession-to-the-
istanbul-convention; and De Vido, S., Sosa, L. (2021) Criminalisation of gender-based violence against 
women in European States, including ICT-facilitated violence, European Commission, available at: 
https://www.equalitylaw.eu/downloads/5535-criminalisation-of-gender-based-violence-against-women-in-
european-states-including-ict-facilitated-violence-1-97-mb. 

517  GREVIO’s (basic) evaluation report on legal and other measures to implement the Council of Europe 
Convention on preventing and combating violence against women and domestic violence GERMANY, 
www.bmfsfj.de/resource/blob/202386/3699c9bad150e4c4ff78ef54665a85c2/grevio-evaluierungsbericht-
istanbul-konvention-2022-data.pdf. 

518  See www.bundesregierung.de/breg-de/aktuelles/partnerschaftsgewalt-2145006.  
519  Femizide in Deutschland – Eine empirisch-kriminologische Untersuchung zur Tötung an Frauen https://uni-
tuebingen.de/fakultaeten/juristische-fakultaet/forschung/institute-und-forschungsstellen/institut-fuer-
kriminologie/forschung/gewaltkriminalitaet/femizide-in-deutschland. 

520  FRA, Violence against women: an EU-wide survey, https://fra.europa.eu/sites/default/files/fra-2014-vaw-

survey-at-a-glance-oct14_en.pdf. 

521  Schröttle, M., Müller, U. et al. (2004), Lebenssituation, Sicherheit und Gesundheit von Frauen in 

Deutschland. Eine repräsentative Untersuchung zu Gewalt gegen Frauen in Deutschland (Life situation, 
safety and health of women in Germany. A representative study on violence against women in Germany), 
Berlin: BMFSFJ, https://www.bmfsfj.de/bmfsfj/studie--lebenssituation--sicherheit-und-gesundheit-von-
frauen-in-deutschland/80694.  

522  42 % of all women reported psychological violence such as psychological terror, stalking, humiliation, 

aggressive shouting, threats or insults.  

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account as well, the percentage would have risen to 34 %).523 Under the categories used 
by the study, 58 % of the women surveyed reported sexual harassment. The vast majority 
of perpetrators of physical or sexual violence were male and the violence mostly took place 
at the home of the victim or the perpetrator or both; 25 % of all women reported that the 
perpetrator was their (ex)husband or (ex)partner. A follow-up study on violence against 
women in (ex)partnerships and domestic violence based upon a secondary analysis of the 
data from the 2004 representative study found that – contrary to widespread prejudices 
about  violence  as  an  exclusive  problem  of  the  poor  –  women  with  middle  and  high 
educational and social  backgrounds are also  victims  of violence in (ex)partnerships and 
domestic  violence.524 
to 
separate/divorce,  risk  factors  also  include  experiences  of  violence  in  childhood  and 
adolescence. 

to  separation/divorce  or 

In  addition 

intention 

the 

An  important  statistical  publication  on  the  subject  of  violence  in  relationships  is  the 
‘Criminological  Evaluation  –  Partnership  Violence’  (Kriminalistische  Auswertung  – 
Partnerschaftsgewalt),  which  has  been  published  annually  since  2016  by  the  Federal 
Criminal  Police  Office.525  The  report  on  2021  demonstrates  that  there  was  a  steady 
increase  of  registered  intimate  partner  violence  cases  over  the  last  five  years  (3.4 %), 
while there was some decline compared to the previous year. This included 143 000 victims 
in 2021. More than 80 % of the victims are women. Almost every third day, a woman is 
being killed by her current of former partner. A 2020 report on the health of women in 
Germany  noted  that  women’s  experience  of  violence  is  independent  of  their  socio-
economic  background  but  disabled  women,  those  separated  from  their  partners,  and 
asylum-seeking women are affected disproportionately.526 The GREVIO noted that there is 
no  data  available  on  the  number  of  violations  of  emergency  protection  orders,  on  the 
sanctions imposed as a result of such violations, or on the number of cases in which the 
woman  was  revictimised  or  murdered  as  a  result  of  such  violations.  There  is  also  no 
information on children who are victims or witnesses of violence against women.527 

Although disabled persons’ organisations and women’s organisations correctly state that 
this possibility of sterilisation without the consent of the person involved severely violates 
human  rights  under  the  Convention  on  the  Rights  of  Persons  with  Disabilities  and  the 
Istanbul  Convention,  German  law  for  the  longest  time  allowed  for  women  with  ‘mental 
disability’ to be sterilised on the decision of a caregiver and with collaboration of a court. 528 
An unusually high number of women with disabilities, especially ‘mental disabilities’, were 
sterilised in Germany (9 %-18 % compared with 2 %-6 % of the female population) but 
the number reduced every year.529 There were also a high number of undocumented cases. 
According  to  a  study  on  the  sterilisation  of  women  with  learning  disabilities,  half  of  the 
women surveyed explained that they  consented to their  sterilisation  while for the  other 

523  GiG-net (ed.) (2008), Gewalt im Geschlechterverhältnis. Erkenntnisse und Konsequenzen für Politik, 

Wissenschaft und soziale Praxis (Gender-based violence. Findings and consequences for politics, science 
and social practice), p. 26, Opladen: Barbara Budrich.  

524  Schröttle, M. and Ansorge, N. (2009), Gewalt gegen Frauen in Paarbeziehungen. Eine sekundäranalytische 
Auswertung zur Differenzierung von Schweregraden, Mustern, Risikofaktoren und Unterstützung nach 
erlebter Gewalt (Violence against women in intimate relationships. A secondary analytical evaluation to 
differentiate severity levels, patterns, risk factors and support after experienced violence), Berlin: BMFSFJ, 
https://www.bmfsfj.de/bmfsfj/service/publikationen/gewalt-gegen-frauen-in-paarbeziehungen/80614.  

525  Kriminalistische Auswertung – Partnerschaftsgewalt (2019-2021), available online: 

www.bka.de/DE/AktuelleInformationen/StatistikenLagebilder/Lagebilder/Partnerschaftsgewalt/partnerschaft
sgewalt_node.html.  

526  Robert Koch Institute (2020), Gesundheitliche Lage der Frauen in Deutschland (Health situation of women 

in Germany) 
https://www.rki.de/DE/Content/Gesundheitsmonitoring/Gesundheitsberichterstattung/GBEDownloadsB/Ges
undheitliche_Lage_der_Frauen_2020.pdf?__blob=publicationFile.  

527  GREVIO’s (basic) evaluation report on legal and other measures to implement the Council of Europe 
Convention on preventing and combating violence against women and domestic violence GERMANY, 
www.bmfsfj.de/resource/blob/202386/3699c9bad150e4c4ff78ef54665a85c2/grevio-evaluierungsbericht-
istanbul-konvention-2022-data.pdf, 28. 
528  See section 1905 Civil Code (old version).. 
529  See: (Zwangs-)Sterilisation - Weibernetz e.V. 

115 

 
 
 
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half the determining factors were persuasion by parents, physicians or nursing staff, a lack 
of knowledge about contraception or lack of prospects of living with a child.530 Sterilisation 
without  informed  consent  was  also  one  finding  of  a  2013  representative  study  on 
discrimination and violence against women with disabilities.531 Moreover, the study found 
a  high  prevalence  of  violence  against  women  with  disabilities  in  all  areas  of  life.  About 
60 % to 75 % of the women interviewed532 were affected by physical violence and assaults 
in  adult  life  –  a  proportion  twice  as  high  as  the  proportion  of  women  in  the  population 
average of the 2004 study. Deaf and blind women were disproportionately affected; 41 % 
of deaf women experienced physical violence by their intimate partners. The proportion of 
women with disabilities who have become victims of sexual violence are three to four times 
larger  than  the  proportion  of  women  who  are  not  disabled:  29 %  to  43 %.  The  vast 
majority  of  perpetrators  were  intimate  partners.  Deaf  women  are  disproportionately 
affected  by  sexual  violence  by  intimate  partners,  but  also  by  colleagues,  friends  or 
unknown perpetrators. Furthermore, 67 % to 87 % of all women interviewed experienced 
gender-based violence in the form of sexual harassment. A high number of women with 
disabilities  reported  psychological  violence  such  as  verbal  violence  (shouting,  abuse, 
humiliation), 
ridicule,  oppression  and  harassment,  slander,  coercion, 
discrimination, exclusion and psychological terror in the area of public, education or work 
(50 %  to  60 %),  by  authorities  or  institutions  (40 %  to  50 %),  in  healthcare  (30 %  to 
40 %)  or  in  private,  by  friends  or  family  members  (30 %  to  50 %).  Of  all  deaf  women 
interviewed, 45 % were victims of psychological violence by their intimate partners. 

threat, 

The  law  on  sterilization  without  consent  was  changed  via  the  Act  on  the  Reform  of 
Guardianship and Care Law of 04. May 2021.533 Now section 1817(2) Civil Code states that 
‘For the decision on the consent to  sterilization of the person being cared for, a special 
supervisor must always be appointed (sterilization supervisor).’ The decision on consent 
to  sterilization  may  not  be  delegated  to  a  care  association  or  a  care  authority  (section 
1818(5) Civil Code). Moreover, section 1830 Civil Code only allows sterilization of persons 
who  cannot  themselves  consent,  if  sterilization  corresponds  to  the  “natural  will  of  the 
person being cared for”.534  

During  the  reform  it  was  again  considered  whether  the  provision  should  be  abolished. 
Indeed,  human  rights  organisations  deemed  it  to  be  contrary  to  the  United  Nations 
Convention on the Rights of Persons with Disabilities. Accordingly, sterilization without the 
full  and  informed  consent  of  the  person  concerned  should  be  banned.  However,  the 

530  Zinsmeister, J. (2012), ‘Zur Einflussnahme rechtlicher Betreuerinnen und Betreuer auf die Verhütung und 
Familienplanung der Betreuten’ (On the influence of legal guardians on the contraception and family 
planning of those under their care), in Betreuungspraxis, pp. 227ff.  

531  Schröttle, M., Hornberg, C. et al. (2013), Lebenssituation und Belastungen von Frauen mit Behinderungen 

und Beeinträchtigungen in Deutschland (Life situation and burdens of women with disabilities and 
impairments in Germany), Berlin: BMFSFJ, 
https://www.bmfsfj.de/resource/blob/94204/3bf4ebb02f108a31d5906d75dd9af8cf/lebenssituation-und-
belastungen-von-frauen-mit-behinderungen-kurzfassung-data.pdf. 

532  The greater differences between the proportion are due to the fact that the prevalence of gender-based 
violence among women with disabilities differs considerably with regard to the kind of disability. Women 
with physical disabilities as well as blind and deaf women are disproportionately affected.  

533  Gesetz zur Reform des Vormundschafts- und Betreuungsrechts, Official Journal (BGBl. I) 2021 no 21 12 

May 2021, page 882.  

534  Section 1830 Civil Code in full reads:  

(1) The consent of a sterilization supervisor to a sterilization of the person being cared for, to which he 
cannot themselves consent, is only permissible if 

1. sterilization corresponds to the natural will of the person being cared for, 
2. the person being cared for will remain permanently incapable of giving consent, 
3. it can be assumed that pregnancy would occur without sterilization, 
4. as a result of this pregnancy, a danger to life or a risk of serious impairment of the physical or 
mental state of health of the pregnant woman would be expected which could not reasonably be 
averted, and  
5. the pregnancy cannot be prevented by other reasonable means. 

(2) Consent requires the approval of the guardianship court. Sterilization may not be carried out until two 
weeks after the approval has taken effect. In the case of sterilization, preference should always be given to 
the method that allows re-fertilization. 

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explanatory notes related to the legal reform do not follow this reasoning. Rather, they 
identify tow issues with the proposition. Firstly, a complete abolishment of the provision 
would have the effect that sterilisation is treated just like any other  medical treatment. 
This  would  reduce  the  protection  for  the  person  concerned.  Banning  sterilisation  all 
together would also ignores the expressed wish of the person in question. As such it would 
also undermine the personal autonomy of the person concerned.  The current wording is 
viewed as an effective compromise that complies with the UN Conventions as well as the 
Istanbul Convention. The explanatory notes explicitly state: ‘In the future, it will no longer 
be sufficient for a person under care not to object to sterilization. People who are not able 
to  form  or  express  a  natural  will  may  therefore  no  longer  be  sterilized.  Consent  of  the 
sterilization supervisor can therefore only be considered if the person being cared for is 
not capable of giving consent, but consents to the procedure with a natural will. This new 
regulation  strengthens  the  right  of  self-determination  of  those  who  are  not  capable  of 
giving consent in the implementation of the UN CRPD. In particular, it should be avoided 
that such an intervention is carried out on patients who do not actually want sterilization, 
but  do  not  express  an  objection  in  order  not  to  get  into  a  conflict  with  the  caregiver, 
relatives or doctor.’535 The Act is in force since 01 January 2023. The impact and effect of 
the rules on sterilisation are supposed to be evaluated a year after its enforcement. 

10.1.2 Overview of national acts on violence against women, domestic violence and issues 

related to the Istanbul Convention 

There  are  several  national  acts  on  violence  against  women  and  domestic  violence.  The 
most important are: 

- 

- 

- 

- 

- 

- 

- 

Protection  Against  Violence  Act  of  11 December  2001,  entering  into  force  on 
1 January 2002, Official Journal 2001, p. 3513; 
Act on the establishment and operation of a state-wide telephone helpline ‘Violence 
Against Women’ of 7 March 2012, Official Journal 2012, p. 448; 
Fiftieth law on amendments to the Penal Code – improvement of the protection of 
sexual autonomy of 4 November 2016, Official Journal 2016, p. 2460; 
Act  on  the  improvement  of  combating  trafficking  in  persons  of  11 October  2016, 
Official Journal 2016, p. 2226; 
Act on the improvement of the protection against stalking of 1 March 2017, Official 
Journal 2017, p. 386; 
Act  for  a  genuinely  more  effective  fight  against  stalking  and  better  detection  of 
cyberstalking  as  well  as  improvement  of  criminal  law  protection  against  forced 
prostitution of 17 August 2021, Official Journals 2021, p. 3513; 
Act  on  the  improvement  of  the  protection  of  personality  in  the  case  of  image 
recordings of 9 October 2020, Official Journal 2020, 2075). 

The Protection Against Violence Act 2002 provides the competent court with the power to 
order a perpetrator of domestic violence to vacate the residence where the victim lives, 
not to enter it again and not to contact the victim in any way. The courts can decide in 
summary  proceedings.  Further,  there  are  police  law  regulations  in  all  states  to  avoid 
protection gaps by authorising the police to set similar orders for up to 10 days to keep 
the perpetrator out of the residence and out of contact with the victim. When the victim 
applies  for  a  court  order,  the  police  order  can  be  extended  for  another  10  days  and 
becomes  invalid  with  the  court’s  decision.  Under  Section 2  of  the  Protection  Against 
Violence Act, the competent court can assign the residence of perpetrator and victim to 
the victim (and their children) alone. Further, the victims can apply for a restraining order 
before the civil courts under Section 1 of the Act, and if the perpetrator violates this order, 
they can be prosecuted under Section 4 of the Act. The Protection Against Violence Act is 
an especially successful example of ‘outsider jurisprudence’, which focuses on the needs 
of the victims and reaches beyond the boundaries of different legal fields and competencies 

535  Parliamentary papers (BT-Drucks.) 03. March 2021, 19/27287, page 24. 

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(such as civil law, criminal law, police law, etc.).536 In addition to the legal provisions, the 
cooperation  of  various  state  and  non-state  actors  such  as  courts,  police,  youth  welfare 
office, counselling centres, women’s organisations and support groups has been improved 
and institutionalised. Nevertheless, there are still severe obstacles to putting this law into 
practice, among them the everlasting question of resources as well as problems in dealing 
with  particularly  violent  perpetrators,  the  lack  of  consideration  of  prior  violence  when 
granting  child  visiting  rights  to  the  (perpetrating)  father,  and  the  lack  of  monitoring 
systems  and  effective  protection  for  women  living  in  institutionalised  accommodation 
(female refugees, women with disabilities). 

In 2012, a law537 set up state-wide, round-the-clock, free telephone helplines to provide 
advice  and  information  in  relation  to  all  forms  of  violence  covered  by  the  scope  of  the 
Istanbul Convention (IC). The helplines are confidential, easily accessible and multilingual. 
They  are  answered  by  female  specialised  staff  and  are  supported  by  a  website.538  The 
problem remains that, in many cases, the helpline staff do not know where to refer victims 
to, as Germany fails to offer an adequate, comprehensive and accessible infrastructure on 
federal,  state  and  local  level,  of  support  and  counselling  for  victims  of  gender-based 
violence. 

On  7 July  2016,  the  Bundestag  adopted  several  amendments  to  the  Penal  Code, 
specifically implementing the ‘No Means No’ concept into the criminal regulations on rape 
and sexual assault.539 In compliance with the IC, sexual actions without the consent of the 
other person are now punishable without further requirements, while the use of force or 
threat  or  the  exploitation  of  a  vulnerable  or  defenceless  position  aggravates  the 
punishment.  Sexual  harassment  (by  physical,  not  verbal  assault)  became  a  criminal 
offence. While the 2022 GREVIO report welcomes the legal change, it notes that it is not 
fully implementing the IC requirements.  The critique is focused  on situations where the 
victim  is  passive  but  does  not  consent.  For  the  act  to  be  punishable,  the  victim  must 
express their contrary will orally or in some other way.  The GREVIO highlights that this 
means  that  the  prosecution  will  focus  on  the  victim’s  actions  rather  than  those  of  the 
accused, creating space for the resurgence of gender stereotypes and rape myths.540 
There are also discouraging experiences concerning the effects of the last comprehensive 
amendments to the law on rape and sexual assault in 1997/98 introducing, inter alia, the 
criminal offence of marital rape, the extension of rape law to other forms of sexual assault, 
protection for male victims of rape and sexual assault and the criminal liability of rape and 
sexual assault by exploiting a victim in a vulnerable position. However, all these statutory 
amendments and protection concepts failed due to resentments of a majority of courts, 
state  attorneys  and  police  staff.  The  reporting  rates  rose  slightly  immediately  after  the 
reform, but still remain at the low level of 5 % to 10 %, while the attrition rates have been 
rising in Germany since the 1980s.541 As analysis shows, the case law of German courts 
(including the Federal Court of Justice) is still strongly influenced by gender stereotypes, 

536  Baer, S. (2004), ‘Effektiver Rechtsschutz durch das Gewaltschutzgesetz: Ein neues Regulierungsmodell für 

ein komplexes Problem’ (Effective legal protection under the Protection Against Violence Act: a new 
regulatory model for a complex problem), in Barton (Hg.), Beziehungsgewalt und Verfahren, pp. 113-121, 
Baden-Baden: Nomos.  

537  Act on the establishment and operation of a state-wide telephone helpline ‘Violence Against Women’ of 

7 March 2012, Official Journal I, p. 448. 

538  See https://www.hilfetelefon.de/aktuelles.html.  
539  Fiftieth law on amendments to the Penal Code – improvement of the protection of sexual autonomy of 

4 November 2016, Official Journal 2016, p. 2460, 
www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl116s2460.pdf%27%5
D__1699969343674.  

540  GREVIO’s (basic) evaluation report on legal and other measures to implement the Council of Europe 
Convention on preventing and combating violence against women and domestic violence GERMANY, 
www.bmfsfj.de/resource/blob/202386/3699c9bad150e4c4ff78ef54665a85c2/grevio-evaluierungsbericht-
istanbul-konvention-2022-data.pdf, page 83. 

541  Seith, C., Lovett, J. and Kelly, L. (2009), Different systems, similar outcomes? Tracking attrition in reported 

rape cases in eleven countries, 
https://www.researchgate.net/publication/228847968_Different_systems_similar_outcomes_Tracking_attri
tion_in_reported_rape_cases_in_eleven_countries. 

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rape myths and victim blaming.542 There is a significant gap between legislation and legal 
practices concerning gender-based violence by (ex)partners. When a man kills or tries to 
kill  his  intimate  (ex)partner  because  she  terminated  or  wanted  to  terminate  a  (mostly 
abusive) relationship, judges, including some federal court judges, base their rulings on 
the  idea  that  the  perpetrator  hurts  himself  by  killing  the  person  that  ‘he  didn’t  want  to 
lose’ with very modest punishments as a result.543 When it comes to sexual assaults or 
sexualised  violence  after  prior  intimacy,  the  effectiveness  of  prosecution  particularly 
suffers  from  stereotyped  victim  blaming,  minor  penalties  or  the  termination  of  the 
proceedings,  and  courts  regularly  impose  lower  sentences  for  acts  of  sexual  assault 
committed within or after an intimate relationship.544 It is an unfortunate and well-known 
phenomenon that improvements in the criminal law on rape and sexual assault lead to the 
rise of attrition rates as the police, state attorneys and judges redefine, negate and restrict 
the scope of application of law on rape and sexual assault.545 

With the Act on the improvement of combating trafficking in persons of 11 October 2016 
amending the Penal Code provisions concerning human trafficking, the German legislature 
mainly implemented Directive 2011/36/EU by amending and clarifying the criminal law on 
trafficking  in  persons  and  by  introducing  new  criminal  offences  of  forced  prostitution, 
forced  labour  and  labour  exploitation.546  Moreover,  the  legislature  introduced  a  criminal 
offence of being the ‘client’ of a victim of human trafficking or forced prostitution,547 which 
was not discussed in public, although questions of ‘the criminal accountability of clients’ 
were broadly discussed in Germany and other European countries. This was perhaps due 
to the expectation that the newly introduced criminal offences would not make a significant 
difference as long as Germany is unwilling to set priorities, offer effective protection for 
victims  irrespective  of  their  nationality  and  put  sufficient  resources  into  combating 
trafficking, exploitation and commercialised rape. 

In December 2016, the  Bundestag adopted several amendments to the criminal law  on 
stalking, which entered into force  on 10 March 2017.548 Stalking is no longer subject to 
private  prosecution,  but  is  to  be  prosecuted  by  the  authorities.  The  violation  of  judicial 
settlements on the matter also constitute a criminal offence. Severe harm to the personal 
life  of  the  victim  is  no  longer  required,  but  the  general  qualification  to  cause  these 
consequences suffices.  It is suggested that 12 % of the population in Germany become 
victims of stalking at least once in their life, and the vast majority (80 %) of these victims 
are  female.  The  former  requirements  of  the  Penal  Code  punished  victims  who  resisted 

542  Analysis of respective rulings of the Federal Court of Justice by Lembke, U. (2014), ‘Vergebliche 

Gesetzgebung. Die Reform des Sexualstrafrechts 1997/98 als Jahrhundertprojekt und ihr Scheitern in und 
an der sog. Rechtswirklichkeit’ (‘Futile legislation. How the legislative reforms of sexual offences in 
1997-1998 became a centennial project and failed in and due to legal reality’), Zeitschrift für 
Rechtssoziologie, Vol. 34, No. 1+2, pp. 253-283. 

543  While so-called honour killings by Muslim or Arab perpetrators are severely punished (life-sentence), many 
white German perpetrators benefit from judges’ empathy for ‘abandoned’ husbands/partners and a cultural 
understanding of spouse or partner killings as domestic tragedies rather than gender-based violence and 
the consequences of patriarchal culture. For a comparative analysis of German criminal court judgments on 
lethal domestic violence see Foljanty, L. and Lembke, U. (2014), ‘Die Konstruktion des Anderen in der 
"Ehrenmord"-Rechtsprechung’ (Judicial othering in case law on so-called honour killings), in Kritische Justiz, 
pp. 298-315.  

544  See German Women Lawyers’ Association, Detailed statement on the effective implementation of the 

Istanbul Convention of 29 January 2018, https://www.djb.de/verein/Kom-u-AS/K6/st18-02/. 

545  Steinhilper, U. (1998) Definitions- und Entscheidungsprozesse bei sexuell motivierten Gewaltdelikten. Eine 
empirische Untersuchung (Definition and decision-making processes concerning sexually motivated violent 
crimes. An empirical study), 2nd edition.  

546  Act on the improvement of combating trafficking in persons of 11 October 2016, Official Journal 2016, 

p. 2226, http://dipbt.bundestag.de/extrakt/ba/WP18/651/65143.html.  

547  There are some problems with the term of ‘forced prostitution’ as under force; there are neither clients nor 
prostitutes but perpetrators raping women and paying for the possibility to do so. Moreover, the criminal 
law as it was could deal with matters of commercialised rape if there were any intention to effectively do 
so.  

548  Act on the improvement of the protection against stalking of 1 March 2017, Official Journal 2017, 

p. 386,www.bgbl.de/xaver/bgbl/start.xav#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl117s0386.pdf
%27%5D__1699969477126.  

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giving  up  their  jobs  or  leaving  their  homes  and  made  it  nearly  impossible  to  prosecute 
even  very  persistent  stalkers.  The  fact  that  stalking  could  only  be  addressed  through 
private  prosecution  gave  the  harmful  impression  that  stalking  was  a  private  problem, 
although  gender-based  violence,  even  and  especially  when  committed  by  (ex)partners, 
husbands or relatives, is a legal problem that should be solved primarily by the state. Due 
to this background, the improvement of the protection against stalking was one more step 
in  the  implementation  of  the  Istanbul  Convention.  The  2021  Act549  further  reforms 
Section 238  Criminal  Code.  Accordingly,  stalking  only  requires  ‘repeated’  rather  than 
‘persistent’  action  and  the  impairment  of  the  victim’s  way  of  life  does  not  have  to  be 
‘serious’, it is sufficient if the impairment is ‘not insignificant’. In addition, typical forms of 
cyberstalking are included in the catalogue of actions. The second paragraph extends the 
length of the penalty in serious cases. 

The  Act  on  the  improvement  of  the  protection  of  personality  in  the  case  of  image 
recordings550  prohibits  ‘upskirting’  and  ‘downblousing’,  defined  as  the  intentional  and 
unauthorised photographing or filming of genitals, buttocks, female breasts or underwear 
covering these parts of the body (Section 184k(1) Criminal Code). 

10.1.3 National provisions on online violence including online harassment 

The current Government’s coalition agreement explicitly refers to the need to implement 
the  Istanbul  Convention  unconditionally  and  effectively  in  the  digital  space.551  For  the 
longest time, victims of online violence and harassment had to resort to general criminal 
as well as civil law provisions.552 However, their  potential  effectiveness  was not utilised 
due to a lack of mobilisation.553 Prosecuting state authorities as well as specialised media 
law courts usually do not apply the appropriate laws due to a misunderstanding of digital 
violence  as  a  private  matter  or  to  examining  freedom  of  speech  in  sole  favour  of  the 
perpetrator and not the victim and, thus, ignoring the victim’s fundamental rights.554 

Cyberstalking is now explicitly included in the general provision on stalking (Section 238 
Criminal Code, StGB). The 2021 Act555 adds typical forms of cyberstalking to the catalogue 
of typical actions. This includes the use of software (app) specially designed for stalking, 
the  non-consensual  distribution  of  intimate  images,  and  the  dissemination  of  texts  or 
drawings under the pretence of authorship by the victim that endangers their reputation, 
for example by using highly sexualised language (Section 238(1) Nos. 5-7 Criminal Code). 

549  Gesetz zur Änderung des Strafgesetzbuches – effektivere Bekämpfung von Nachstellungen und bessere 

Erfassung des Cyberstalkings sowie Verbesserung des strafrechtlichen Schutzes gegen Zwangsprostitution 
(Act for a genuinely more effective fight against stalking and better detection of cyberstalking as well as 
improvement of criminal law protection against forced prostitution reforms) Official Journal (BGBl. I) 2021, 
page 3513.  

550  Änderung des Strafgesetzbuches – Verbesserung des Persönlichkeitsschutzes bei Bildaufnahmen of 9 

October 2020 (BGBl. I S. 2075), in force since 1 January 2021.  

551  Labour/Green/Liberal Coalition Agreement 2021-2025, online: 

www.bundesregierung.de/resource/blob/974430/1990812/1f422c60505b6a88f8f3b3b5b8720bd4/2021-12-
10-koav2021-data.pdf?download=1, page 114. 

552  For an overview of applicable provisions see Lembke, U. (2017), Kollektive Rechtsmobilisierung gegen 
digitale Gewalt (Collective legal action against digital violence), pp. 6ff; and Lembke, U. (2016), ‘Ein 
antidiskriminierungsrechtlicher Ansatz für Maßnahmen gegen Cyber Harassment’ (An anti-discrimination 
law approach for measures against cyber harassment) Kritische Justiz, vol. 49, No. 3, pp. 385 (391ff). 
553  For the question of collective action within the German legal framework, see Lembke, U. (2017), ‘Kollektive 

Rechtsmobilisierung gegen digitale Gewalt’ (Collective legal action against digital violence), E-Paper 
available under https://www.gwi-boell.de/de/2018/01/09/kollektive-rechtsmobilisierung-gegen-digitale-
gewalt.  

554  See Lembke, U. (2016), ‘Ein antidiskriminierungsrechtlicher Ansatz für Maßnahmen gegen Cyber 

Harassment’ (An anti-discrimination law approach for measures against cyber harassment) Kritische Justiz, 
vol. 49, No. 3, pp. 385-406.  

555  Gesetz zur Änderung des Strafgesetzbuches – effektivere Bekämpfung von Nachstellungen und bessere 

Erfassung des Cyberstalkings sowie Verbesserung des strafrechtlichen Schutzes gegen Zwangsprostitution 
(Act for a genuinely more effective fight against stalking and better detection of cyberstalking as well as 
improvement of criminal law protection against forced prostitution reforms) Official Journal (BGBl. I) 2021, 
page 3513.  

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The current Government plans to introduce a law against digital violence, to reduce legal 
hurdles for those affected, such as gaps in information rights, and set up comprehensive 
counselling services. It is supposed to strengthen the personal right to information, enable 
the  blocking  of  accounts  via  judicial  order,  and  ease  communication  with  social  media 
platforms’ review bodies.556 

10.1.4 Political and societal debate 

Discussions  about  a  federal  law  on  the  funding  of  women’s  shelters  and  other  support 
structures  for  victims  of  gender-based  violence,  such  as  counselling  centres,  which  are 
funded by a mixture of donations, payments and subsidies without statutory entitlements 
and thus are chronically underfinanced, did not lead to any parliamentary action. In 2012, 
the Federal Government displayed its lack of intention to improve the funding of women’s 
shelters.557  

A  2020  analysis  concerned  with  the  further  development  of  the  support  system  for 
protection against violence against women and domestic violence558 now creates a good 
factual basis for any further decision-making. The federal funding programme ‘Gemeinsam 
gegen Gewalt an Frauen’ (Together against the violence against women)559 is part of the 
Federal  Government’s  overall  programme  to  combat  violence  against  women  and  their 
children  as  part  of  the  implementation  of  the  Istanbul  Convention  and  the  coalition 
agreement. The plan was to provide a total of EUR 120 million between 2020 and 2024. A 
second pillar of the funding programme  focuses on innovative measures to improve the 
care of the women concerned. However, a funding stop of new projects was announced in 
2023 because of the exhaustion of funds.560 

The Government also plans to explicitly include ‘gender-specific and homophobic motives 
in the catalogue of sentencing under  Section 46(2) of the Criminal Code’. It stated that 
‘the federal and state police forces are to record hate crimes based on gender and against 
queer  people  separately’  and  that  it  is  ‘improving  the  coverage  of  politically  motivated 
crime, e.g. with regard to misogynistic and queer-hostile hate crimes’.561 The Government 
did present a draft law on the revision of the law on sanctions in December 2022.562 

Following the newest statistics on intimate violence, the Federal Government developed a 
list  of  initiatives  to  combat  violence  against  women.  They  predominantly  focus  on  the 
improvement  of  support,  consultation  and  complaint  procedure,  including  local  support 

556  Eckpunkte für ein Gesetz gegen digitale Gewalt (2023) 

https://www.bmj.de/DE/Themen/OpferschutzUndGewaltpraevention/DigitaleGewalt/Digitale_Gewalt_node.
html;jsessionid=6FDB17BA95541D1A16224F9DB41B7D0C.1_cid297.  

557  See Federal Government (2012) Report on the situation of women’s shelters, specialised counselling, and 

other support measures for women victims of violence and their children, 16 August 2012, 
https://www.bmfsfj.de/resource/blob/93350/e8f90d2446d01af18a3c88a110200457/bericht-der-
bundesregierung-zur-situation-der-frauenhaeuser-data.pdf. 

558  Petra Kaps, Sandra Popp (2020), Bedarfsanalyse und -planung zur Weiterentwicklung des Hilfesystems zum 

Schutz vor Gewalt gegen Frauen und häuslicher Gewalt (Needs analysis and planning for the further 
development of the support system for protection against violence against women and domestic violence) 
www.bmfsfj.de/bmfsfj/service/publikationen/bedarfsanalyse-und-planung-zur-weiterentwicklung-des-
hilfesystems-zum-schutz-vor-gewalt-gegen-frauen-und-haeuslicher-gewalt-174022. 

559  See Bundesservicestelle - Gemeinsam gegen Gewalt an Frauen | Bundesamt für Familie und 

zivilgesellschaftliche Aufgaben (bafza.de). 

560  See www.gemeinsam-gegen-gewalt-an-frauen.de/aktuelles/aktuelles-

detailansicht?tx_news_pi1%5Baction%5D=detail&tx_news_pi1%5Bcontroller%5D=News&tx_news_pi1%5B
news%5D=11&cHash=4285368d64c0a8049a60c40feb36d8be. 
561  Labour/Green/Liberal Coalition Agreement 2021-2025, online: 

www.bundesregierung.de/resource/blob/974430/1990812/1f422c60505b6a88f8f3b3b5b8720bd4/2021-12-
10-koav2021-data.pdf?download=1, page 119. 

562  Gesetz zur Überarbeitung des Sanktionenrechts – Ersatzfreiheitsstrafe, Strafzumessung, Auflagen und 

Weisungen sowie Unterbringung in einer Entziehungsanstalt, see online: 
https://www.bmj.de/SharedDocs/Gesetzgebungsverfahren/DE/2022_Sanktionenrecht.html. 

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facilities  in  place  and  federal  coordination  of  resources.  It  also  plans  to  improve  the 
databases.563 

 Ratification of the Istanbul Convention 

Germany  ratified  the  Istanbul  Convention  (IC)  on  12 October  2017  and  the  Convention 
entered into force as German law on the federal level on 1 February 2018.564 

Under  Article 78  of  the  IC,  the  German  Government  declared  reservations  concerning 
Articles  59(2)  and  59(3)  of  the  IC  on  residence  status,  residence  permit  and  the 
suspension  of  expulsion  procedures  for  foreign  victims  of  gender-based  violence,  thus 
diminishing the protection for female refugees and migrants who are victims of domestic 
violence. The statute on the ratification incorporates these reservations and thus weakens 
the protection for  one  of the most  vulnerable  groups. Reservations to  Article 59(2) and 
(3) are permitted under the Convention. 

Under the German Constitution, the full conformity of German law with the IC had to be 
reached  before  ratification,  which  slowed  down  the  process  considerably.  An  extremely 
controversial  topic  in  Germany  was  the  question  of  whether  the  implementation  of 
Article 36 of the IC requires substantial amendments to the definitions of rape and sexual 
assault within the Penal Code. Article 36 of the IC states that engaging in non-consensual 
acts of a sexual nature with a person constitutes sexual violence and a criminal offence 
without  further  requirements,  while  the  German  Penal  Code  required  not  only  lack  of 
consent but, moreover, coercion by violence or severe threat or the deliberate exploitation 
of an especially vulnerable situation. The Federal Ministry of Justice denied the necessity 
to  amend  the  Penal  Code  to  reach  conformity  with  the  IC,  federal  judges  campaigned 
against  amendments  and  politicians  from  all  parties  expressed  worries  about  Germans’ 
sex life. It was not until the sexual harassment and assault of many women in Cologne on 
New  Year’s  Eve  2015/16  that  politicians  turned  in  favour  of  urgent  amendments  to  the 
Penal  Code.  Although  such  amendments  were  overdue,  the  arguments  were  very  often 
framed with racist tendencies (see Section 3.1.2 above). In July 2016, amendments to the 
Penal  Code  to  implement  Article 36  of  the  IC  were  passed  by  the  Bundestag  with  an 
overwhelming  majority,  but  the  governing  parties  quite  randomly  connected  these 
amendments  with  amendments  to  the  asylum  law  on  deportations  and  expulsions, 
obtaining a narrow majority for the latter. This was just one example of the exhibition of 
right-wing populist politics in the heart of the German Parliament. 

The draft for the ratification statute to implement the IC was accompanied by a ministerial 
memorandum claiming that no further legislative amendments were necessary to reach 
the full conformity of German law with the IC. The German Women Lawyers’ Association, 
among others, did not share this view and published a longer statement on the effective 
implementation of the IC in Germany, highlighting 14 examples of fields of action in which 
comprehensive measures are still needed to begin an implementation process.565 

The first state (and parallel) reporting procedure for Germany before the IC treaty body 
GREVIO  was  submitted  in  September  2020.  The  final  report  was  published  in  2022.  It 
specifically  welcomed  the  changes  in  the  criminal  code  (definition  of  rape  and 
cyberstalking, revenge porn and upskirting), but also considered the ‘No Means No’ rule 

563  See www.bundesregierung.de/breg-de/aktuelles/partnerschaftsgewalt-2145006.  
564  Parliamentary information on the ratification and (unequivocal) adoption by Parliament is available at: 

https://www.bundestag.de/dokumente/textarchiv/2017/kw22-de-haeusliche-gewalt-507528, and the draft 
of the Act on the 2011 Council of Europe Convention on preventing and combating violence against women 
and domestic violence (as adopted by Parliament and including the ministerial memorandum): 
http://dip21.bundestag.de/dip21/btd/18/120/1812037.pdf. 

565  German Women Lawyers’ Association (2018), ‘Statement on the effective implementation of the Council of 

Europe Convention on the Prevention and Suppression of Violence against Women and Domestic Violence 
(Istanbul Convention) in Germany’, 29 January 2018, available at: https://www.djb.de/verein/Kom-u-
AS/K6/st18-02/.  

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to  be  insufficient  in  relation  to  Article 36(2)  of  the  IC.  As  outlined  above,  it  specifically 
referred to victims that remain passive. 

However, it also identified significant  deficits in the implementation. These relate to the 
countrywide coordination of preventive measures and the lack of nationwide strategy and 
permanent working groups. Further they identified a lack of data collection, that makes it 
difficult to develop informed policy proposals and to identify serious lacks of education and 
training  in  groups  that  work  within  the  context  of  gender-based  violence.  They  also 
considered  the  number  of  available  protective  measures  (e.g.  women’s  houses)  to  be 
insufficient and identified significant barriers in the access to consultation and protection. 
They  also  significantly  highlighted  the  plight  of  female  asylum  seekers  that  are  not 
sufficiently protected in the refugee settings and whose specific circumstances are often 
not taken into account. The GREVIO pointed out that the needs of other vulnerable groups 
such as disabled women or LGBTQ* need to be taken into account too. 

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11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 

directives) 

 General (legal) context 

11.1.1 Issues related to the pursuit of a discrimination claim 

The authors of a comprehensive evaluation of the General Equal Treatment Act566 point 
out that the provisions on enforcement of anti-discrimination show several weaknesses, 
such  as  barriers  in  the  access  to  justice,  a  too-short  time  limit  of  two  months  for  anti-
discrimination  claims,  inconsistencies  concerning  the  shift  of  the  burden  of  proof,  the 
requirement of fault that is incompatible with European law, restrictions to the amount of 
compensation  for  non-pecuniary  harm,  compensation  levels  lacking  dissuasiveness,  the 
burdens for individual claimants and the lack of any possibility of class action or collective 
action and effective support by anti-discrimination bodies and organisations. The employee 
has to take legal action under the General Equal Treatment Act individually, irrespective 
of  whether  the  pay  discrimination  is  based  upon  an  individual  agreement  or  a 
discriminatory  system,  as  there  is  no  possibility  of  collective  or  class  actions  regarding 
equal pay, such as the right of associations to start legal proceedings.567 It is clear that a 
restriction to individual claims limits the ability to challenge structural discrimination, such 
as discriminatory pay structures, gender-segregated labour markets, gender stereotypes 
in the evaluation of ‘female’ work, and algorithmic discrimination.568 

11.1.2 Political and societal debate and pending legislative proposals 

Following the  Reform  of the  General Equal Treatment Act in  relation to the head  of the 
Federal  Anti-Discrimination  Agency  in  April  2022,  the  Labour/Green/Liberal  coalition 
agreement  still  indicates  further  reforms.  Specifically,  it  states,  that  the  General  Equal 
Treatment Act (AGG) will be evaluated, gaps in protection will be closed, legal protection 
will be improved, and the scope of application will be expanded.569 

11.1.3 Gender mainstreaming 

Several  provisions  require  the  active  encouragement  of  gender  equality  at  the  federal 
level. Article 3(2) of the Basic Law explicitly imposes a duty on the state to foster gender 
equality.  Beyond 
Federal  Gender  Equality  Act 
of 
(Bundesgleichstellungsgesetz,  BgleiG)  imposes  a  similar  duty  on  all  employees  of  the 
federal  administration.  Indeed,  Section 2  of  the  Joint  Rules  of  Procedure  of  the  Federal 
Government (Gemeinsame Geschäftsordnung der Bundesregierung, GGO) explicitly refers 
to the term gender mainstreaming and indicates that the equality of women and men is a 
leading principle (Leitprinzip) and should be promoted within the context of all political, 

that,  Section 2 

the 

566  Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/AGG/agg_evaluation.p
df?__blob=publicationFile&v=12.  

567  See German Women Lawyers’ Association (2019), Stellungnahme zur öffentlichen Anhörung des 

Bundestagsausschusses für Familie, Senioren, Frauen und Jugend am 18. März 2019 (Statement on the 
public hearing of the Committee for Family Affairs, Senior Citizens, Women and Youth of the Federal 
Parliament on 18 March 2019), https://www.djb.de/verein/Kom-u-AS/K1/st19-07/.  

568  Demanding the introduction of collective or class action measures in anti-discrimination law are Berghahn, 
S., Klapp, M., Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes (Evaluation of 
the General Equal Treatment Act), Berlin: ADS, pp. 141ff, 159ff; Fuchs, G., Konstatzky, S., Liebscher, D., 
Berghahn, S. (2009), ‘Rechtsmobilisierung für Lohngleichheit’ (Mobilisation of the law for pay equality) 
Kritische Justiz, Baden-Baden: Nomos, pp. 253-270, http://www.kj.nomos.de/archiv/2009-42/heft-3-220-
333/; Lembke, U. (2018), ‘Kollektive Rechtsmobilisierung gegen digitale Gewalt’. (Collective mobilisation of 
the law against digital violence), E-Paper, https://www.gwi-boell.de/de/2018/01/09/kollektive-
rechtsmobilisierung-gegen-digitale-gewalt.  

569  Labour/Green/Liberal Coalition Agreement 2021-2025, online: 

www.bundesregierung.de/resource/blob/974430/1990812/1f422c60505b6a88f8f3b3b5b8720bd4/2021-12-
10-koav2021-data.pdf?download=1, page 121. 

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legislative  and  administrative  activities.  There  are  various  other  legal  provisions  that 
explicitly recognise the need to foster gender equality. However, in practice it is difficult 
to measure the effect of these measures. 

 Victimisation 

The provisions on victimisation are implemented in German legislation. Section 16 of the 
General Equal Treatment Act prohibits victimisation in labour relationships and gives the 
victim of discrimination or any person who supported them a  right of action against the 
employer. This rule also applies to discrimination against civil servants.570 

There is nearly no case law on the prohibition of victimisation. The Federal Labour Court 
decided that the entitlement to compensation when discriminated against in working life 
under Section 15(2) of the General Equal Treatment Act did not cover compensation for 
victimisation.571  A  claimant’s  attempt  to  understand  the  obligation  to  bear  costs  in  civil 
procedural  law  when  seeking  redress  for  alleged  discrimination  as  a  violation  of  the 
prohibition of victimisation was rejected by the State Labour Court of Baden-Württemberg 
in  2015.572  Section 15(6)  is  applicable  in  cases  of  victimisation.  Accordingly,  claimants 
cannot ask for reinstatement or renewal of a (temporary) contract.573 In a rather obscure 
case,  a  head-hunter  was  deemed  liable  for  breach  of  confidentiality  after  informing  the 
applicant that she was not recruited because of her sex. The female applicant used this 
information  to  lodge  a  successful  case  of  sex  discrimination.  The  company  then 
successfully sued the head-hunter for damages. It has been argued that the reasoning of 
the  court  focusing  on  the  confidentiality  requirements  alone  somewhat  obscures  the 
specific facts of the case which led to the conclusion.574 

 Access to courts 

11.3.1 Difficulties and barriers related to access to courts 

Access  to  the  courts  is  ensured  for  individuals  only.  Anti-discrimination  interest 
organisations  do  not  have  standing  in  court  but  may  support  individual  claimants.  This 
lack  of  standing  is  one  of  the  main  reasons  for  the  relative  ineffectiveness  of  anti-
discrimination  law  in  Germany.  The  possibility  of  collective  legal  action  in  anti-
discrimination  law  lifts  the  burden  on  and  empowers  the  victims,  enforces  the  law  and 
accompanies societal measures against discrimination. While consumer associations can 
seek collective  redress, initiate class actions, represent consumers in court,  enforce the 
law without any identifiable victim and even claim the confiscation of profits gained by the 
enterprise  breaking  the  law  on  the  protection  of  consumers,  anti-discrimination 
associations have none of these rights. They can only offer judicial assistance and advice 
in court, and moreover are intimidated by the court’s authority to withdraw their right to 
speak  if  they  do  not  ‘present  the  facts  and  the  legal  dispute  appropriately’  under 
Section 79(3)(3) of the Code of Civil Procedure. 

There  is  one  minor  exemption:  Under  Section 23  of  the  Works  Constitution  Act  and 
Section 17 of the General Equal Treatment Act, works councils575 can take action against 
the employer in the event of a serious breach of their duties concerning non-discrimination. 
In practice, they have not yet done so. An important reason for this lack of action may be 

570  Administrative Court of Gießen, judgment of 26 May 2011, 5 K 401/11.GI, while pointing out that the 

option to take legal action under civil service law takes precedence.  

571  Federal Labour Court, judgment of 18 May 2017, 8 AZR 74/16/. 
572  State Labour Court of Baden-Württemberg, judgment of 19 November 2015, 6 Sa 68/14.  
573  Federal Labour Court, judgment of 21 September 2011, 7 AZR 150/10; Higher Labour Court Berlin-

Brandenburg, judgment of 23 April 2021, 12 Sa 1421/20. 

574  Higher Regional Court Frankfurt, judgment of 8 May 2014, 16 U 175/13.  
575  Staff councils representing people employed by the state are not covered by these regulations and the 

works councils cannot claim for the individual compensation and damages owed to the employee who has 
been discriminated against. 

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that works councils are not eager to accuse the employer of ‘serious discrimination’. The 
relatively new Berlin State Anti-Discrimination Act of 20 June 2020,576 which is concerned 
with discriminatory actions under public law that fall outside the scope of the General Equal 
Treatment Act, does include a representative action (Verbandsklage) in Section 9. There 
is also no actio popularis and no class action concerning anti-discrimination. Amicus curiae 
can only be brought to the Federal Constitutional Court and on the Court’s request. 

In  cases  of  discrimination  within  the  context  of  employment  and  access  to  goods  and 
services  provided  under  civil  law,  the  labour  courts  and  the  civil  courts  (the  ‘ordinary 
courts’) are competent. In some of the German states, actions concerning discrimination 
in access to goods and services cannot be brought to court before the failure of a prior 
mediation  procedure.  Administrative  courts  are  competent  to  decide  claims  against  a 
public authority. In civil and labour cases, the claim has to be brought within two months; 
in administrative and social law cases, the period for bringing action is one month. These 
are very short time limits for realising that one is a victim of discrimination, seeking social 
and  legal  aid,  and  deciding  on  legal  action.  While  other  employment  law  cases  (e.g. 
regarding  unfair  dismissal)  have  even  shorter  timelines,  this  ignores  the  complexity  of 
cases  of  discrimination  that  transpire  only  over  time  without  a  specific  date  of  action, 
especially if it relates to treatment. Following a preliminary reference to the CJEU,577 the 
Federal Labour Court has nevertheless repeatedly emphasised that the two-month period 
in labour law cases would suffice and would not violate the principles of equivalence and 
effectiveness.578  There  have  been  several  proposals  to  extend  the  time  limit  to  six 
months.579 

11.3.2 Availability of legal aid 

There  is  no  special  regulation  of  legal  aid  for  anti-discrimination  cases  but  the  general 
rules apply. There is some financial aid for persons with a low income.580 The Counselling 
Assistance  Act  ensures  that  people  with  low  incomes  receive  legal  advice  and  legal 
representation outside court proceedings in return for a small contribution of their own. If 
the efforts to reach an out-of-court settlement fail and a court has to deal with the matter, 
legal aid can be claimed. 

Counselling  assistance  is  provided  under  the  Legal  Advice  Assistance  Act581  to  persons 
who,  according  to  their  personal  and  economic  circumstances,  are  unable  to  raise  the 
means to exercise rights outside the court proceedings. Furthermore, it must be that no 
other  reasonable  possibility  of  legal  advice  is  available,  such  as  advice  from  consumer 
centres, tenants’ associations, authorities, debt counselling or legal expenses insurance. 
Legal  aid  is  granted  to  persons  who,  according  to  their  personal  and  economic 
circumstances, are unable to meet the costs of the proceedings, only partially or only in 
instalments  (Sections  114  et  seq.  of  the  Code  of  Civil  Procedure).582  The  intended  law 
enforcement  or  legal  defence  must  offer  sufficient  prospects  of  success  and  must  not 

576  State Anti-Discrimination Act (Berlin) of 20 June 2020, 76(29) Official Journal for Berlin 2020, p. 532. 
577  CJEU Case C-246/09 Bulicke judgment of 8 July 2010.  
578  Federal Labour Court, judgment of 18 May 2017, 8 AZR 74/16; judgment of 21 June 2012, 8 AZR 188/11. 
The court argues that due to the special distribution of the burden of proof in anti-discrimination cases, the 
claim for compensation because of discrimination could not be compared to other compensation claims. As 
the regulations on the burden of proof do not work out too well in practice, one obstacle for access to 
justice is justified by another.  

579  See German Women Lawyers’ Association (2016), Press Release of 18 August 2016, 

https://www.djb.de/verein/Kom-u-AS/K1/pm16-21/; Berghahn, S., Klapp, M. & Tischbirek, A. (2016), 
Evaluation des Allgemeinen Gleichbehandlungsgesetzes (Evaluation of the General Equal Treatment Act), 
ADS: Berlin, pp. 145ff. 

580  See Federal Ministry for Justice, 

https://www.bmj.de/DE/themen/wege_zum_recht/gerichtsverfahren/prozesskostenhilfe/prozesskostenhilfe
_node.html.  

581  See https://www.gesetze-im-internet.de/berathig/BJNR006890980.html.  
582  See https://www.gesetze-im-internet.de/englisch_zpo/index.html.  

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appear wilful. In other words, the aid is granted if, by superficial examination by the court, 
the applicant’s case has a good chance of success. 

 Horizontal effect of the applicable law 

11.4.1 Horizontal effect of relevant gender equality law 

The  horizontal  effect  of  gender  equality  and  anti-discrimination  law  has  always  been  a 
central issue of dispute in German legal discourse. For a long time, a possible horizontal 
effect  of  the  constitutional  prohibition  of  sex  discrimination  and  the  principle  of  gender 
equality was strongly contested and the state equality laws only applied to the civil service 
and the state as employer. The very reason why the implementation of the European anti-
discrimination  directives  was  fiercely  rejected  by  judges,  lawyers,  law  professors  and 
politicians was the fact that the new anti-discrimination legislation would address private 
employers, insurance, contractors and suppliers of goods. German civil law literature and 
practice was especially averse to the idea of binding non-discrimination rules applying to 
private  employment  relationships  and  the  provision  of  goods  and  services  by  private 
contractors.  Most  of  them  try  to  ignore  possible  horizontal  effects  of  European  anti-
discrimination and fundamental rights law. 

11.4.2 Impact of horizontal direct effects of the charter after Bauer 

In Germany, the CJEU decision in Bauer was not highlighted as an issue in legal debate, 
at least not with regard to horizontal direct effects of the charter.583 One reason for this 
might be that the Bauer decision was preceded by the CJEU ruling in Egenberger,584 which 
caused some uproar and that the side remarks in the latter ruling concerning the possible 
direct horizontal effects of the charter were certainly noticed. 

As Egenberger is still pending before the Federal Constitutional Court,585 its attention to 
horizontal effects has been raised in relation to another FCC decision. In 2018, the Federal 
Constitutional Court decided on the possible horizontal effect of the constitutional provision 
of  equality  before  the  law  under  Article 3(1)  of  the  German  Constitution  in  the  case  of 
Stadionverbot.586 The court maintained the general rule of only indirect horizontal effects 
and  pointed  out  that  such  effects  would  not  mean  that  legal  relations  between  private 
individuals  must  be  designed  by  them  in  strict  compliance  with  equality.  However, 
constitutional  requirements  of  equal  treatment  may  apply  in  specific  circumstances, 
namely in the event that one private party has a powerful monopoly in offering a generally 
accessible  and  socially  relevant  good  or  service  and  excludes  another  private  individual 
from this offer without objective reasons. In Germany, the CJEU ruling in Egenberger and 
the FCC ruling in Stadionverbot are at the centre of legal debate, which is maybe not as 
inspired by European legal thought as one might wish. 

The labour courts directly apply Article 157 TFEU in pay discrimination cases.587 

 Burden of proof 

German legislation provides for a shift of the burden of proof in sex discrimination cases. 
In civil and labour cases, there is a shift of the burden of proof under  Section 22 of the 
General Equal Treatment Act: if the claimant proves facts permitting the conclusion that 
there  was  discrimination,  the  defendant  has  to  submit  evidence  to  the  contrary.  The 

583  E.g. see Fuhlrott, M. (2018), ‘Anmerkung’ (Remark), in Europäische Zeitschrift für Wirtschaftsrecht, 

Vol. 24, pp. 1054-1055.  

584  Judgment of the Court (Grand Chamber) of 17 April 2018, Vera Egenberger v. Evangelisches Werk für 

Diakonie und Entwicklung e.V., Case C-414/16, ECLI:EU:C:2018:257.  

585  Constitutional Court, 2 BvR 934/19 (pending). 
586  Federal Constitutional Court, judgment of 11 April 2018, 1 BvR 3080/09 (Stadionverbot).  
587  Established case law, e.g. Federal Labour Court, judgment of 26 September 2017, 3 AZR 733/15; State 

Labour Court of Berlin and Brandenburg, judgment of 5 February 2019, 16 Sa 983/18. 

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decision  will  be  taken  to  the  disadvantage  of  the  party  whose  set  of  facts  cannot  be 
corroborated by the court. However, practical problems are the lack of information rights 
and the  courts’ reluctance to allow or  even practice the use  of statistical data  as prima 
facie evidence.588 

The  idea  of  the  2017  Pay  Transparency  Act  was  to  diminish  problems  of  proof  in  pay 
discrimination cases and thus further gender equality in working life. Under Sections 10-16 
of the Act, employees are entitled to obtain information on the gross remuneration of their 
fellow employees doing the same work or work of equal value and up to two remuneration 
components.  It  is  doubted  that  the  information  obtained  suffices  to  shift  the  burden  of 
proof.589 

In a seminal 2021 decision, the Federal Labour Court considered that the EU-conforming 
interpretation of the  Pay Transparency Act  and the General Equal Treatment Act meant 
that the female claimant alleging pay discrimination needed to demonstrate only that she 
produced equal work or work of equal value and a difference in pay between her and the 
median  of  the  male  peer  group.590  This  was  deemed  sufficient  to  ‘establish  facts  from 
which it may be presumed that there has been discrimination’ (Section 22 General Equal 
Treatment Act). Accordingly, the burden of proof shifts and it is then up to the employer 
to demonstrate that the difference in pay is not based on the employee’s sex or gender. 
As such, burden of proof requirements may be eased in the future. Prior to that, it was 
extremely  difficult  to  demonstrate  pay  discrimination,  as  courts  did  not  consider  pay 
differences to be sufficient, even if the comparator provided work of equal value.591 

The Federal Labour Court also held that the terms ‘employee’ in Section 5(2) No. 1 Pay 
Transparency  Act  must  be  interpreted  broadly  in  conformity  with  EU  law  in  accordance 
with  the  concept  of  employee  in  Directive 2006/54/EC.592  As  such,  persons  similar  to 
employees also have a right to information under Section 10. The lower court had rejected 
such a right, because the claimant was a freelancer and, in the opinion of the lower court, 
not covered by the personal scope of application of the Act as a quasi-subordinate worker. 

 Remedies and sanctions 

11.6.1 Types of remedies and sanctions 

In labour and civil cases, the victim has a right to injunction or removal as well as damages 
and compensation. 

In  working  life,  the  employer  is  obliged  to  take  all  necessary  measures  to  end  the 
discrimination perpetrated by other employees and third parties, such as customers, under 
Section 12  of  the  Act.  However,  under  Section 15(6)  of  the  Act,  discrimination  by  the 
(prospective)  employer  does  not  constitute  an  entitlement  to  the  conclusion  of  an 
individual labour contract. This has been extended to cases of victimisation.593 In civil law 
cases,  the  victim  can  bring  a  claim  for  the  cessation  of  the  discrimination  and  non-
repetition under Section 21(1) of the Act and prevailing legal opinion argues that contrary 

588  Federal Labour Court, judgment of 22 July 2010, 8 AZR 1012/08, overruling the State Labour Court of 

Berlin and Brandenburg, judgment of 26 November 2008, 15 Sa 517/08. 

589  Franzen, M. (2017), ‘Anwendungsfragen des Auskunftsanspruchs nach dem Entgelttransparenzgesetz’ 

(Questions of application of the right to information under the Pay Transparency Act), in Neue Zeitschrift für 
Arbeitsrecht, Vol. 13, pp. 814-819.  

590  Federal Labour Court, judgment of 21 January 2021, 8 AZR 488/19, 

ECLI:DE:BAG:2021:210121.U.8AZR488.19.0. 

591  Labour Court of Berlin, judgment of 1 February 2017, 56 Ca 5356/15; State Labour Court of Berlin and 

Brandenburg, judgment of 5 February 2019, 16 Sa 983/18. 
592  Federal Labour Court, judgment of 25 June 2020, 8 AZR 145/19. 
593  Federal Labour Court, judgment of 21 September 2011, 7 AZR 150/10; Higher Labour Court Brandenburg, 

judgment of 23 April 2021, 12 Sa 1421/20. 

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to labour law cases, the reinstatement or the fulfilment of the denied contract is covered 
as well. 

Persons  discriminated  against  can  claim  for  damages  and  compensation  under 
Section 15(1) of the General Equal Treatment Act (working life) or under Section 21(2) of 
the Act (access to goods and services). Following the Federal Labour Court, the entitlement 
to compensation when discriminated against in working life does not cover compensation 
for  victimisation.594  Section 15(2)  covers  non-pecuniary  loss.  Generally,  the  amount  of 
compensation  is  decided  on  by  the  court,  but  there  is  a  restriction  in  the  event  of 
discrimination in recruitment processes under Section 15(2)(2) of the Act. In the event of 
non-recruitment, the amount of compensation is restricted to a maximum of three months’ 
salary if the applicant would not have been hired in a discrimination-free procedure either. 

In  the  employment  relationships  of  civil  servants,  all  claimants  have  the  right  to  a 
discrimination-free repetition of the (hiring or promotion) procedure, and there is even a 
right of the best candidate to be chosen under the Constitution. The effectiveness of this 
remedy  depends  on  timely  information,  otherwise  the  victim  can  merely  claim 
compensation. 

In 2016, the Federal Court of Justice decided that parents who could not return to work 
after their parental leave due to the lack of sufficient and appropriate public childcare can 
claim damages for loss of earnings from the local authority responsible.595 Since August 
2013, children under the age of three are entitled to public childcare under Section 24(2) 
of the Social Code No. 8. The local authorities are obliged to offer sufficient and appropriate 
public  childcare  in  nurseries,  kindergartens  or  by  childminders  (known  as  day-care 
mothers).596 The Federal Court of Justice decided that the entitlement to public day-care 
should  not  only  favour  the  children  cared  for,  but  also  their  parents,  especially  those 
wanting to return to work, and that therefore a culpable violation of the obligation to offer 
public childcare would lead to liability of the local responsible authority for damages for 
the suffered loss of earnings by any parent. 

A  possible  sanction  under  labour  law  is  that  (sexually)  harassing  employees  may  face 
dismissal  by  their  employer.  However,  lawyers  are  concerned  by  the  possibility  of 
exoneration by pleading that the (sexual) harassment was a ‘momentary failure’ – a legal 
argument  introduced  by  a  2014  Federal  Labour  Court  decision597  and  referred  to  many 
times  since.598  On  the  occasion  of  the  severe  sexual  harassment  of  a  male  temporary 
worker  by  a  male  member  of  the  permanent  staff,  the  Federal  Labour  Court  made  a 
landmark decision on sexual harassment at the workplace (see 3.6.6.), and confirmed that 
one severe assault is sufficient to constitute sexual harassment and that the consequence 
may be dismissal without notice under certain circumstances.599 

Criminal  sanctions  and  administrative  fines  are  not  available  in  cases  of  gender 
discrimination, with the exception of bodily sexual harassment, which is covered by the 
Penal Code as amended in 2016. However, there is little willingness to see any of the 2016 
amendments of criminal law on sexual assault and sexual harassment put into practice.600 

594  Federal Labour Court, judgment of 18 May 2017, 8 AZR 74/16.  
595  Federal Court of Justice, judgment of 20 October 2016, III ZR 278/15. The action was brought before the 

court by three mothers.  

596  Comprehensively on the new entitlement and its enforcement see the contributions by Schettler, A., 

Meiner-Teubner, C. and Möller, V. ‘Ausbau der Kinderbetreuung für Unter-Dreijährige’, Zeitschrift des 
Deutschen Juristinnenbundes 4/2016, pp.155ff, 161ff, 167ff, 171f.  
597  Federal Labour Court, judgment of 20 November 2014, 2 AZR 755/13.  
598  Schrader, P. and Thoms, T. (2017), ‘Sexuelle Belästigung – Denn sie wissen nicht, was sie tun?’ 

Arbeitsrecht Aktuell, pp. 31ff, 60ff, referring to relevant court decisions. 

599  Federal Labour Court of 29 June 2017, 2 AZR 302/16, https://www.hensche.de/Arbeitsrecht-urteile-BAG-

2AZR302-16-29.06.2017-Ausserordentliche-Kuendigung-sexuelle-Belaestigung-u.html.  

600  E.g. Fischer, T. (2016 and 2018) Strafgesetzbuch. Kommentar (Commentary on the Penal Code) 64th ed. & 

65th ed. whose commentary is the main source of legal expertise for criminal court judges and state 
lawyers in Germany.  

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If the offender cannot be identified, victims of gender-based violence can make a claim 
for  compensation  against  the  state  under  certain  conditions  under  the  Victim 
Compensation Act (Opferentschädigungsgesetz).601 With the Social Compensation Act of 
12 December  2019,  the  compensation  law  was  fundamentally  restructured  and,  among 
other things, the concept of the violent act giving rise to a claim was extended to include 
‘acts of psychological violence’ to comply with the Istanbul Convention. Unfortunately, the 
necessary restrictions of the scope of application go far beyond the objective by limiting 
compensation to harm suffered by ‘a serious conduct directed directly against the free will 
and  choice  of  a  person’,  e.g.  human  trafficking,  forced  prostitution,  stalking,  abduction 
and  extortion.  It  is  hardly  imaginable  that,  with  the  exception  of  stalking,  one  of  these 
offences can be performed without physical violence, and the psychological consequences 
of physical violence are already covered by the law.602 

11.6.2 Effectiveness, proportionality and dissuasiveness 

The compatibility of several restrictions of remedies and sanctions with the directives and 
the CJEU case law as well as the Istanbul Convention is doubtful. 

Under Sections 15(1)(2) and 21(2)(2) of the General Equal Treatment Act, the employer 
as  well  as  the  person  providing  goods  or  services  are  obliged  to  pay  material  damages 
only  when  they  can  be  held  responsible  for  the  discrimination  by  personal  fault.603 
Moreover, in labour law cases, perpetrators of the discrimination not being employers can 
exonerate themselves by showing that they did not act negligently or intentionally under 
general  rules  of  German  civil  law.  In  the  event  of  discrimination  caused  by  collective 
agreements,  the  employer  is  only  responsible  if  they  acted  with  gross  negligence  or 
intentionally under Section 15(3) of the General Equal Treatment Act – the compatibility 
of which with the directives cannot be confirmed in this regard.604 

The  Federal  Labour  Court  held  in  2020  that  a  court  cannot  refrain  from  claiming 
compensation  under  Section 15(2)  AGG  if  it  finds  a  violation.  However,  it  is  possible  to 
subsequently  waive  the  claim  under  Section 15(2)  by  means  of  a  termination 
agreement.605  The  dispute  arose  because  of  an  employer’s  failure  to  pay  for  overtime. 
While  the  lower  court  did  agree  that  the  practice  was  discriminatory  and  ordered  the 
employer to pay for the overtime (i.e. actual loss or material damages), it then considered 
it  disproportionate  to  also  impose  damages  for  non-pecuniary  loss.  The  Federal  Labour 
Court also rejected that the degree of fault mattered, because liability under Section 15(2) 
General Equal Treatment Act is independent of fault. 

The amounts of compensation granted for personal harm are very modest. In labour law 
cases, the victim of sex/gender discrimination has a right to compensation the amount of 
which  has  to  be  defined  by  the  competent  court.  What  remains  questionable  is  the 
restriction of the amount of compensation for discrimination in recruitment procedures: if 
the applicant would not have been hired in a discrimination-free procedure, the amount of 
compensation  is  restricted  to  a  maximum  of  three  months’  salary.  In  other  words:  the 
amount of compensation for the (immaterial) suffering of discrimination coupled with the 
(material) salary for a specific position, while the entitlement to compensation is rightly 
not based on the question whether the victim of discrimination would have got the job. 

601  Victim Compensation Act of 7 January 1985, Official Journal 1985, p. 1, https://www.gesetze-im-

internet.de/oeg/BJNR011810976.html.  

602  Critique by the German Women Lawyers’ Association, https://www.djb.de/themen/thema/ik/st20-09/.  
603  Federal Administrative Court, judgment of 30 October 2014, 2 C 6/13, confirmed the requirement of the 

personal fault of the employer under Section 15(1)(2) of the General Equal Treatment Act. Thus, the Court 
did not follow the Labour Court of Cologne, judgment of 28 November 2013, 15 Ca 3879/13, holding that 
this requirement is inapplicable due to its incompatibility with European law.  

604  Labour Court of Cologne, judgment of 28 November 2013, 15 Ca 3879/13, restricted its application to 

cases of indirect discrimination and association-level collective agreements.  

605  Federal Labour Court, judgment of 28 October 2021, 8 AZR 371/20. 

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Country report – Gender equality – Germany – 2023 

This  might  set  false  incentives  to  avoid  discrimination  only  in  cases  concerning  leading 
positions. 

In  civil  law  cases  concerning  the  access  to  goods  and  services,  the  amount  of 
compensation is not restricted under Section 21(2) of the General Equal Treatment Act. 
However, the courts are very reluctant to award more than a few hundred euros, which 
raises  the  question  of  dissuasiveness  and  effectiveness.  There  is  nearly  no  (published) 
case law on compensation for sex/gender discrimination in access to goods and services. 
The few decisions on compensation for young men of an alleged foreign ethnic origin who 
were denied access to clubs and discotheques, partly granted compensation for the racist 
discrimination606 and only partly for intersectional discrimination on the grounds of gender 
and racial prejudice,607 but with no further explanation how this might concern the amount 
of compensation. After the court of first instance had denied any compensation with the 
argument that the denial of access might happen to everyone, the Higher Regional Court 
of  Stuttgart  awarded  compensation  in  the  (then  spectacular)  amount  of  EUR 900  for 
intersectional discrimination, pointing out that this amount equalled the amount of revenue 
for  the  evening  in  question.608  Generally,  the  courts  awarded  compensation  between 
EUR 500 and EUR 1 000,609 but it cannot be clarified whether such compensation awards 
for  racist  discrimination  are  higher  than  compensation  awards  for  sex/gender 
discrimination  would  be.  In  2011,  the  Higher  Regional  Court  of  Hamm  awarded 
compensation to the amount of EUR 2 000 for non-pecuniary harm after a private health 
insurance provider terminated the membership of the pregnant applicant.610 However, it 
is  doubtful  that  this  case  sets  an  example  for  compensation  for  discrimination  on  the 
grounds of sex/gender as it is evident that maternity protection is an important issue for 
the courts, while this cannot be said for other forms of sex/gender discrimination. 

 Equality body 

In 2006, the Federal Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes) 
was established under federal law and with federal funding.611 On the level of the states 
(Länder), only very few comparable bodies exist.612 The competencies of FADA extend to 
all grounds of discrimination contained in the European anti-discrimination directives and 
(since  December  2022)  now  also  include  disadvantages  related  to  the  readjustment  of 
working time due to parental or carer leave as required by the Work-Life Balance Directive. 
Its responsibilities are to inform individuals claiming to have been discriminated against 
and  the  general  public  about  the  legal  means  available  in  the  event  of  discrimination. 
Further, FADA is required to conduct studies on discrimination and propose measures to 
prevent discrimination. 

606  E.g. District Court of Hannover, judgment of 25 November 2015, 549 C 12993/14; District Court of Munich, 
judgment of 17 December 2014, 171 C 27856/13; District Court of Hannover, judgment of 14 August 2013, 
462 C 10744/12; District Court of Leipzig, judgment of 18 May 2012, 118 C 1036/12; District Court of 
Bremen, judgment of 20 January 2011, 25 C 278/10.  

607  E.g. Higher Regional Court of Stuttgart, judgment of 12 December 2011, 10 U 106/11; District Court of 

Oldenburg, judgment of 23 July 2008, E2 C 2126/07. 

608  Higher Regional Court of Stuttgart, judgment of 12 December 2011, 10 U 106/11. The District Court of 
Hannover, judgment of 25 November 2015, 549 C 12993/14 awarded compensation in the amount of 
EUR 1 000 pointing out the dissuasive effect.  

609  The Regional Court of Aachen, judgment of 19 May 2017, 2 S 26/17, awarded compensation in the amount 
of EUR 2 500 for intersectional discrimination on the grounds of gender and racial prejudice because the 
black male applicant had been denied admission to a gym chain with racist arguments about him being a 
danger for female members several times.  

610  Higher Regional Court of Hamm, judgment of 12 January 2011, 20 U 102/10, I-20 U 102/10. The District 

Court of Hannover, judgment of 26 August 2008, 534 C 5012/08, rejected a pregnant applicant’s claim for 
compensation when her private health insurance excluded benefits for pregnancy and childbirth from the 
beginning.  

611  See http://www.antidiskriminierungsstelle.de/DE/Home/home_node.html.  
612  For example, the anti-discrimination authorities of Berlin (http://www.berlin.de/lb/ads/) and Schleswig-
Holstein (http://www.antidiskriminierungsstelle-sh.de/), and the anti-discrimination office for Saxony 
(http://www.adb-sachsen.de/).  

131 

 
 
 
 
 
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The agency has no power to support individuals in anti-discrimination suits, and cannot 
impose  any  fines  for  discrimination.  Its  influence  on  the  legal  and  factual  situation 
regarding anti-discrimination is limited. The authors of a comprehensive evaluation of the 
General  Equal  Treatment  Act613  strongly  suggest  that  the  agency  should  be  given  the 
powers  to  offer  support  in  specific  legal  actions  by  means  of  advice  and  amicus  curiae 
briefs, by effective rights to information, complaint, and participation, and by the authority 
to take legal action independent of another claimant in fundamental cases. 

In  2022,  the  appointment  procedure  was  reformed.  The  leadership  of  the  Federal  Anti-
Discrimination Agency (FADA) is now to be elected by the Parliament (Bundestag) on the 
proposal of the Federal Government. The term of office is to be set at five years with the 
possibility of an one-time re-election. As such, it is decoupled from the legislative period 
which is supposed to ensure professional independence and freedom from state influence. 

 Social partners 

Although the social partners are aware of their responsibility to prevent and abolish gender 
discrimination  in  collective  agreements,  they  have  not  yet  undertaken  any  systematic 
assessment.  The  legislature  is  reluctant  to  impose  specific  obligations  on  the  social 
partners  in  this  respect,  pointing  to  its  obligation  to  respect  their  freedom  of  coalition 
under the Constitution. Nevertheless, legislation obliging the social partners to live up to 
their  responsibility  would  be  in  compliance  with  the  Constitution  as  it  would  emphasise 
their existing obligations flowing from EU law. 

Collective agreements  play an important  role in German labour  law but vary to a great 
extent.  Most  collective  agreements  are  concluded  at  the  level  of  the  states.  Collective 
agreements contain rules on various contents as well as the conclusion and dissolution of 
employment  contracts.  These  rules  are  binding  and  directly  applicable  between  an 
employer  and  employee  if  both  are  members  of  the  social  partners  that  concluded  the 
agreement.  Most  collective  agreements  do  not  present  themselves  as  a  particularly 
effective means of implementing EU gender equality law. Critics argue that one important 
reason for this is that most social partners are male-dominated organisations.614 A 2018 
analysis  of the  remuneration system of the  states’ civil  service615 stated  that there was 
broad leeway for adverse impacts on female-dominated working activities and, thus, for 
indirect pay discrimination based on sex/gender. Further, the authors of the study deemed 
it nearly impossible to seek effective legal redress. 

 Other relevant bodies 

Equality bodies, specialised public agencies, NGOs and unions as well as law clinics can – 
and do – offer support by providing legal advice and political support and raising awareness 
and campaigning, etc. 

Equal Opportunities Officers exist within the federal and state administration.  The Equal 
Opportunities Officer has the mandate to monitor and promote the implementation of the 
(Federal) Gender Equality Act in the (federal) office. Discrimination on the basis of gender 

613  Berghahn, S., Klapp, M. and Tischbirek, A. (2016), Evaluation des Allgemeinen Gleichbehandlungsgesetzes 

(Evaluation of the General Equal Treatment Act), ADS: Berlin, 
https://www.antidiskriminierungsstelle.de/SharedDocs/downloads/DE/publikationen/AGG/agg_evaluation.p
df?__blob=publicationFile&v=12.  

614  See Blaschke, S. (2008), Frauen in Gewerkschaften: zur Situation in Österreich und Deutschland aus 

organisationssoziologischer Perspektive (Women in trade unions in Austria and Germany), Munich; and the 
2015 conference on the topic: http://www.archiv.soziologie.phil.uni-
erlangen.de/system/files/3akt_2809_programm_tagung_geschlechterperspektiven_auf_gewerkschaften.pdf 

615  Jochmann-Döll, A. and Tondorf, K. (2018), Gleiches Entgelt für gleichwertige Arbeit? Die Entgeltordnung 
des Tarifvertrags der Länder (TV-L) auf dem Prüfstand (Equal pay for equivalent work?), ADS: Berlin, 
https://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/DE/publikationen/Entgelt_UN_Gleichheit
/TV_L.html?nn=7742234.  

132 

 
 
 
 
 
 
 
 
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should be prevented and protection against sexual harassment should be guaranteed. It 
participates in all administrative measures relating to equality between women and men 
and the reconciliation of work and family life. The Equal Opportunities Officer also supports 
women and men in matters of professional advancement or in cases of disadvantage. 

Some  of  the  unions  engage  in  tackling  sex  discrimination  by  public  awareness  raising, 
political  influence,  commissioning  studies  and  legal  expertise  on  sex  discrimination, 
offering education and training courses for their members, etc. However, to the author’s 
knowledge, they do not represent victims of discrimination based on sex at court. 

Some NGOs – the European Centre for Constitutional and Human Rights (ECCHR),616 Büro 
zur  Umsetzung  von  Gleichbehandlung  (BUG,  Office  for  the  Implementation  of  Equal 
Treatment),617 Gesellschaft für Freiheitsrechte (GFF, Society for Civil Rights),618 Juristische 
Menschenrechtsarbeit  Deutschland  (JUMEN,  Legal  Human  Rights  Advocacy 
in 
Germany),619  and  the  Centre  for  Intersectional  Justice620  –  were  recently  founded  to 
implement, use and/or support strategic litigation in anti-discrimination and human rights 
cases.  Until  now,  German  courts  have  not  always  acted  professionally  when  confronted 
with the phenomenon of strategic litigation. 

There are many law clinics supporting refugees and some acting in the field of customer 
protection  law.  There  is  also  the  Humboldt  Law  Clinic  for  Basic  and  Human  Rights 
(HLCMR),621  which  deals  with  questions  of  discrimination 
including  sex/gender 
discrimination. The HLCMR is training law and gender students in anti-discrimination law 
and policies, human rights and law enforcement, especially strategic litigation. The clinic 
works  in  close  cooperation  with  equality  bodies,  unions,  lawyers,  NGOs  and  anti-
discrimination advice organisations to further basic, human rights and anti-discrimination 
law and practice in Germany. The students complete internships with these cooperation 
partners  and  after  this,  write  legal  expertise  to  be  used  by  the  partners  in  their  work 
and/or to be published to be accessed by the public. Sometimes, the law clinic supports 
strategic litigation when performed by the partners and sometimes the clinic is involved in 
reporting procedures before international human rights treaty bodies. 

 Evaluation of implementation 

Impediments to the access to justice for victims of discrimination are the legal costs, the 
very  short  periods  in  which  to  decide  upon  legal  action  and  find  a  lawyer,  the  lack  of 
information, the adverse stance of main parts of legal discourse and some broader parts 
of  media  discourse  towards  anti-discrimination  claims,  especially  concerning  sex 
discrimination,  and  the  general  reluctance  to  bring  discrimination  cases  before  a  court 
instead of settling them otherwise (which often fails and only leads to the situation that 
the time limit for bringing legal action is missed in the end). 

Unfortunately, statutory law and case law contribute to these obstacles. The problems are 
well-known. The time limit of two months for anti-discrimination claims must be extended 
to  six  months.  The  requirement  of  fault  must  be  removed  as  it  is  incompatible  with 
European law and hampers access to justice. Restrictions to the amount of compensation 
for non-pecuniary harm should be regulated with plausible reason and the courts should 
improve the dissuasiveness of compensation awards. To remove the burdens for individual 
claimants and truly strengthen the enforcement of anti-discrimination law, the potential 
for class action or collective action and effective support by anti-discrimination bodies and 
organisations have to be introduced. 

616  See https://www.ecchr.eu/.  
617  See https://www.bug-ev.org/.  
618  See https://freiheitsrechte.org/.  
619  See https://jumen.org/.  
620  See https://www.intersectionaljustice.org/.  
621  See http://hlcmr.de/eng/.  

133 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

 Remaining issues 

There are no remaining issues. 

134 

 
 
 
Country report – Gender equality – Germany – 2023 

12  Overall assessment 

The following specific transposition problems were mentioned in this report: 

1. 
2. 

Lack of implementation of important CJEU rulings such as Coleman and Feryn. 
The gender pay gap remains at 19 % in Germany. 

- 

- 

- 

- 

There is no entitlement to equal pay for equal work but only a prohibition of 
pay discrimination. 
Despite  the  importance  of  gender-discriminatory  job  classifications, 
employers  bound  by  collective  agreements  are  privileged  under  the  Pay 
Transparency  Act,  because  collective  agreements  are  exempted  from 
judicial review. 
The Pay Transparency Act is insufficient: reporting duties are restricted to 
companies  with  more  than  500  employees  and  there  are  no  effective 
sanctions in the case of non-compliance, pay audits are not mandatory, the 
right  to  information  is  restricted  to  companies  with  more  than  200 
employees, although the majority of women work in smaller enterprises. 
Statutory justifications of indirect pay discrimination on the grounds of sex 
are incompatible with CJEU rulings (especially Barber). 

3. 

4. 

5. 

6. 

No  effective  protection  against  discrimination,  especially  in  the  form  of  (sexual) 
harassment, by supervisors or superiors not being employers, by colleagues and by 
third parties such as business partners, customers or clients. 
Statutory requirement of fault in labour law cases, incompatible with European law 
and hampering access to justice. 
Repeated  occurrence  of  strong  gender  bias  in  justifications  (e.g.  minimum  height 
requirements in police service and ‘boys’ choir sound’), but the Federal Labour Court 
has recently rejected that pay negotiations can justify pay discrimination. 
Lack of positive action measures. 

- 

- 

The  equal  qualification  requirement  produces  counter-effects  as  gender-
biased  assessment  procedures  and  persistent  gender  stereotypes  lead  to 
the devaluation of female qualifications. 
Limited progress in female leadership within the civil service and zero target 
quotas for women in leading management positions and on executive boards 
of private companies. It remains to be seen whether the newly introduced 
sanctions/duties to report will change the trend. 

7. 
8. 
9. 

The male breadwinner model is still widespread. 
Lack of a statutory right to return after parental leave. 
Lack  of  explicit  prohibition  of  sex/gender  discrimination  in  (partly  tax-funded) 
occupational social security schemes. 

10.  Lack of explicit implementation of Directive 79/7. 
11.  No  explicit  implementation  of  Directive 2010/41/EU  and,  thus,  no  effective 
protection  of  self-employed  women  against  discrimination  on  the  grounds  of 
sex/gender,  sexual  harassment,  maternity  discrimination,  lower  income,  lesser 
social security coverage, and poverty in old age. 

12.  Lack  of  adequate  and  comprehensive  legal  protection  of  students  against  sexual 

harassment in education. 

13.  Lack of adequate implementation of Directive 2004/113/EC. 

- 

- 

The prohibition of discrimination in access to goods and services does not 
cover provisions by public authorities. 
The prohibition of discrimination in the access to goods and services applies 
only to ‘mass contracts’. 

135 

 
 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

- 

- 

- 
- 

The  prohibition  of  pregnancy  and  maternity  discrimination  is  restricted  to 
the field of employment. 
The  protection  against  sexual  harassment  is  restricted  to  the  field  of 
employment. 
The prohibition of victimisation is restricted to the field of employment. 
The  requirement  of  proportionality  is  missing  in  statutory  law  covering 
possible justification of differential treatment based on sex in the provision 
of goods and services. 

15.  The number of anti-discrimination court cases is vanishingly small in Germany. 
16.  Lack of regulations to put anti-discrimination law into practice and to guarantee its 

factual effectiveness, several weaknesses of the enforcement provisions. 

- 

- 

- 

Severe  restrictions  of  the  possible  use  of  statistical  data  to  prove  indirect 
discrimination. 
There are mostly no effective sanctions for discrimination (e.g. the amount 
of compensation for non-pecuniary harm is overly restricted). 
There is no right of associations to start legal proceedings in discrimination 
cases  and  no  possibility  of  effective  support  by  anti-discrimination  bodies 
and organisations. 

Overall, the assessment of Germany’s implementation of EU gender equality law does not 
lead to consistent results. There is a mixed picture emerging in terms of formal legislative 
implementation, material legislative implementation and effectiveness in practice. 

In  general,  Germany  implemented  the  European  anti-discrimination  directives  solely 
through  the  2006  General  Equal  Treatment  Act,  which  has  not  been  amended  in  any 
meaningful way since its adoption. Due to the date of the Act’s entry into force as well as 
its scope of application, it cannot implement all relevant provisions and directives. There 
is obviously no statutory implementation concerning occupational pensions or questions 
of  social  security  or  the  protection  of  self-employed  persons  against  sex/gender 
discrimination. At the same time, there are several statutory provisions covering questions 
of  abolishing  discrimination  on  the  grounds  of  sex/gender  without  formally  transposing 
European directives. Some of these provisions, for example those concerning maternity 
protection or parental leave and allowances, go beyond the requirements of the directives, 
others just contain prohibitions or incentives in material compliance with European law. 
The fact that formal legislative implementation is lacking does not necessarily mean that 
German  statutory  law  would  not  cover  central  terms  and  concepts  of  European  anti-
discrimination law. However, some of the gaps outlined above have not been addressed 
by case law. 

Although German courts and legal practitioners are aware of EU law, the case law of the 
CJEU and the obligation to interpret national law in the light thereof, the factual situation 
of  gender  equality  in  Germany  does  not  indicate  that  there  has  been  successful 
implementation of European anti-discrimination law. The Pay Transparency Act has had a 
somewhat surprising impact. The Act does not address structural reasons for the gender 
pay gap, including the strongly gender-segregated labour market, the unequal distribution 
of  paid  full-time  and  part-time  work  as  well  as  of  unpaid  care  work  between  men  and 
women  or  the  practices  of  institutionalised  devaluation  of  ‘female’  work.  The  scope  of 
application  is  also  limited  and  the  number  of  requests  for  information  is  insignificant. 
However, the Act has been instrumental for the Federal Labour Court to revise its case law 
on  equal  pay  and  pay  discrimination  as 
implementing 
Directive 2006/54/EC. As such, it has interpreted the personal scope widely, considered 
pay differences between comparators sufficient to shift the burden of proof, and rejected 
that negotiation tactics could justify unequal pay. 

it  views  the  Act  as 

136 

 
 
 
 
 
 
Country report – Gender equality – Germany – 2023 

There are neither political nor legal  concepts to  effectively implement the prohibition of 
sex/gender discrimination into social security systems, especially pension schemes. The 
enormous gender pension gap is not just a consequence of the gender pay gap,  but  of 
additional  discrimination  and  disadvantages  in  women’s  working  lives.  All  of  these 
problems  multiply  for  migrant  women,  female  refugees  and  women  with  disabilities. 
Moreover, self-employed workers do not actually enjoy protection against discrimination 
but suffer severe disadvantages, especially regarding the upbringing of children or other 
care work, remuneration, social security and pensions. Further, discrimination by gender 
pricing is widespread in the field of access to goods and services, while protection against 
sexual harassment or discrimination on the grounds of gender or maternity is lacking. 

Some German courts are eager to apply anti-discrimination law, to close implementation 
gaps and to introduce concepts of anti-discrimination into legal discourse and practice in 
Germany. The labour courts regularly refer to CJEU rulings, anti-discrimination directives 
and European primary law, such as Article 157 TFEU. However, other courts do not and, 
moreover,  the  total  number  of  anti-discrimination  cases  remains  exceptionally  small  in 
Germany. This indicates fundamental problems concerning the access to justice. Moreover, 
neither statutory law nor case law will suffice without a legal culture of anti-discrimination. 
There is a considerable lack of legal education, legal literature and (serious) legal discourse 
on anti-discrimination law. The problems of German courts when dealing with questions 
of discrimination, especially indirect or intersectional discrimination, are just a symptom 
of a severe blank in German law and legal practice, which should be filled by legislation, 
courts,  lawyers,  legal  researchers,  and  those  who  strive  for  access  to  justice 
collaboratively. 

137 

 
 
 
Country report – Gender equality – Germany – 2023 

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138 

 
 
 
 
 
 
 
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ISBN: 978-92-76-47340-4 doi: 10.2838/58060