Encrochat: Constitutional complaint failed
1. August 2025
Menu
July 13, 2022 /
Around three years ago, the EU drew up a directive (2019/1152) that now sets out much more precise, transparent and reliable working conditions for employees in the EU. Countries now have until July 31 to transpose the directive into national law. This would give the German government the opportunity to further implement its digitalization goals.
Currently, regulations on employment contracts can be found in the BGB and the GewO. Section 611a of the BGB currently defines an employment contract as follows:
The employment contract obliges the employee to perform work in the service of another person in personal dependence and subject to instructions. The right to issue instructions may relate to the content, performance, time and place of the work. An employee is bound by instructions if they are not essentially free to organize their work and determine their working hours. The degree of personal dependence also depends on the nature of the respective activity. To determine whether an employment contract exists, an overall assessment of all circumstances must be made. If the actual implementation of the contractual relationship shows that it is an employment relationship, the designation in the contract is irrelevant.
The employer is obliged to pay the agreed remuneration.
Section 105 of the Trade Regulation Act (GewO) also regulates the structure of an employment contract:
The employer and employee are free to agree the conclusion, content and form of the employment contract, provided there are no mandatory statutory provisions, provisions of an applicable collective agreement or a works agreement to the contrary. Insofar as the contractual terms and conditions are material, their proof is governed by the provisions of the German Act on Evidence.
The Committee on Labor and Social Affairs has now heard representatives of employees and employers, as the draft law currently being presented by the federal government raises the question of the extent to which the terms of an employment relationship must be recorded purely digitally (text form) or also in the usual printed version (paper form). Although the EU directive at least allows scope for speeding up digital processes in companies, there is nothing to be found in the German government’s draft.
The insistence on employment contracts in paper form is strongly criticized as sending the wrong signal. This is neither sustainable nor digital, consumes unnecessary resources and therefore represents an incomprehensible expense for the employer. This lacks the credibility that Germany is a digital business location.
Achim Berg, President of Bitkom, the industry association for the German information and telecommunications sector, therefore has strong words for the proposal to impose a fine for employment contracts in purely digital form. In his opinion, the obligation to also draw up the contract in paper form is a big step back in time.
This includes the Confederation of German Employers’ Associations (BDA), which, like Berg, described the draft law as “bureaucracy in its purest form” and a step backwards. In addition, according to Carlos Frischmuth, manager at HR service provider Hays and head of the Federal Association for Independent Knowledge Work, a relevant proportion of employees are employed remotely, meaning they can theoretically work from anywhere in the world. Sending an employment contract by post is simply no longer in keeping with the times.
Employee representatives such as the German Trade Union Confederation (DGB), on the other hand, welcome the obligation to have a written employment contract, as, according to Jana Wömper, only the paper form provides the best evidence in legal disputes.
The Association of Labor Court Judges supports the thesis of provability. However, employees are “almost completely familiar with digital media today”. It should therefore be examined to what extent evidence in electronic form can be admitted.
From a lawyer’s point of view, however, this argument is not very conclusive. Statements by the German Bar Association and common practice in courtrooms already refute this.
Source:
Labour committee discusses paper or text form for employment contracts (rsw.beck.de; last accessed on 10.07.2022)
Transparent and reliable working conditions (ec.europa.eu; last accessed on 10.07.2022)
Thousands of employment contracts need to be amended (mdr.de; last accessed on 10.07.2022)
BGB §611a employment contract (gesetze-im-internet.de; last accessed on 10.07.2022)
Discussion about paper or text form for employment contracts (bundestag.de; last accessed on 10.07.2022)