The Minimum Wage Act of 11 August 2014 stipulates that, starting 1 January 2015, employees are entitled to a gross minimum wage of at least EUR 8.50 per working hour (§ 1 of the Act Regulating a Minimum Wage, Gesetz zur Regelung eines allgemeinen Mindestlohns – Minimum Wage Act; hereinafter: the Act). The Third Chamber of the First Senate of the Federal Constitutional Court did not admit for decision three constitutional complaints against the Minimum Wage Act, as they were inadmissible.
The complainants in proceedings 1 BvR 555/15, 14 logistics and haulage companies from Austria, Poland and Hungary that also work in Germany, challenged § 16, § 17.2 and § 20 of the Act. At the same time, they applied for a preliminary injunction to suspend the application of those provisions pending proceedings. Pursuant to § 20 of the Act, employers with their registered office in Germany or abroad are under a duty to pay those employees that work in Germany a wage of at least the amount of the minimum wage. §§ 16 and 17.2 of the Act contain certain obligations to inform custom authorities and to keep certain records (notification and documentation obligations).
In proceedings 1 BvR 37/15, the 17-year-old complainant, who was employed in the sector of system catering earning an hourly wage rate of EUR 7.12, and who was to start vocational training in September 2015, challenged § 22.2 of the Act, which stipulates that children and adolescents without completed vocational training are not entitled to being paid minimum wages. In proceedings 1 BvR 20/15, the complainant challenged § 24.2 of the Act, which, for newspaper deliverer, provides for a raise of wages in stages and stipulates gross minimum wages of EUR 8.50 only from 1 January 2017.
The Federal Constitutional Court decided that the complainants of proceedings 1 BvR 555/15 had to bring their case before the regular courts first.
According to the principle of subsidiarity, a constitutional complaint is inadmissible if it can be reasonably expected of a complainant to seek relief by bringing the case before the regular courts. Only in exceptional cases, there is no such duty. This is particularly the case if it would be unreasonable to expect such conduct.
This was not the case in the proceedings at hand. While it is not reasonable to expect someone to commit a regulatory offence sanctioned by administrative fines to be able to bring a case before the regular courts where the challenged legal provisions could be assessed in the course of the regulatory offences proceedings, the principle of subsidiarity extends further. In the case at hand, it would have been possible to bring an action before the regular courts seeking a declaration that one was not bound by the obligations stated in § 16, § 17.2 and § 20 of the Act. Such actions for negative declarations (negative Feststellungsklagen) are not inadmissible from the outset, as it is reasonable to suppose that the regular courts will find that the complainants have a recognised legal interest in seeking a declaratory judgment.
Furthermore, it is necessary that the legal issues raised are first dealt with by the regular courts. Their decisions can be used to prepare the discussion of the ambiguities concerning the scope of application of the Minimum Wage Act already raised in the literature; thereby, they can influence how the Act is assessed under constitutional law and under European Union law. There is a particular need to clarify whether conditions for employment in Germany are the same as those expected in social security law, and whether, without exception, any even short-term employment on the territory of the Federal Republic of Germany constitutes employment in Germany within the meaning of the Act, or if a certain duration or a link to the German social security systems and to living expenses in Germany is required. Moreover, one will have to discuss whether the statutory obligation to pay minimum wages for short-term employment in Germany is necessary to achieve the goals pursued by the Minimum Wage Act. In addition, the regular courts are called upon to assess the issues of European Union law raised by the complainants in as far as they are essential for their decision.
The complainants’ fear of severe disadvantages if the Minimum Wage Act remains in force does not change the reasonable expectation that they first have recourse to the regular courts. In addition, there are doubts as to sufficient substantiation in as far as the companies’ risk of insolvency has been asserted but no balances of account have been submitted. In any case, to prevent disadvantages, it was possible to seek interim relief before the regular courts.
A decision by the Federal Constitutional Court is also not warranted by the general relevance of the constitutional complaint. The disadvantages for the complainants when first being referred to the regular courts are comparatively small compared to the advantage of having the regular courts deal with the case prior to the Federal Constitutional Court.
As the constitutional complaint was not admitted, the application for a preliminary injunction became moot.
In proceedings 1 BvR 37/15, the requirements of the principle of subsidiarity were also not met. One could have reasonably expected of the complainant to seek relief before the regular courts prior to bringing the case before the Federal Constitutional Court. In addition, the complainant did not establish prima facie that he would suffer severe or unavoidable disadvantages if the Federal Constitutional Court did not admit his constitutional complaint.
In proceedings 1 BvR 20/15, the complainant did not substantiate that she was affected individually, presently and directly by the challenged provision. Neither did she show that she in fact met the requirements of a newspaper deliverer under the third sentence of § 24.2 of the Act nor that she presently earned less than the statutory gross minimum wage of EUR 8.50.