Order of 11 December 2024

Table of contents

1. 1

   A. Facts of the case

2. 102

   B. Admissibility of the constitutional complaints

3. 132

   C. Merits of the constitutional complaints
   

   1. 133

      I. Constitutional review

   2. 135

      II. Violation of Art. 9(3) of the Basic Law
      

      1. 137

         1. Scope of protection

      2. 140

         2. Review of collective agreements on the basis of Art. 3(1) of the Basic Law

      3. 141

         a) Possibility to restrict the fundamental right

      4. 142

         b) General binding effect of the principle of equal treatment on parties to a collective agreement

      5. 153

         c) Requirement of statutory provisions

      6. 157

         3. Judicial review of the binding effect of Art. 3(1) of the Basic Law on parties to a collective agreement

      7. 159

         a) Scope of the binding effect

      8. 162

         b) Judicial review

      9. 169

         c) Application of these standards

      11. 195

          4. Violation of Art. 9(3) of the Basic Law in the determination of legal consequences

          1. 196

             a)           Standards

          2. 197

             aa).       Leeway to design granted by Art. 9(3) of the Basic Law is affected

          3. 198

             bb).       Primary power to remedy in case of leeway to design

          4. 201

             cc).         Determination of the leeway to design

          6. 220

             b)           Application of these standards

   3. 231

      III. Violations of Art. 2(1) in conjunction with Art. 20(3) of the Basic Law, Art. 12(1) of the Basic Law, Art. 3(1) of the Basic Law

1. 232

   D. Legal consequences

R e a s o n s :

A.

1

The constitutional complaints are directed against two judgments issued by the Federal Labour Court (Bundesarbeitsgericht). In the initial proceedings, the Federal Labour Court had ordered the employers to pay higher supplementary allowances than those determined in the collective agreements to the plaintiffs, who work night shifts. The Federal Labour Court found that the respective rules on supplementary allowances for (regular) night shifts in the applicable collective agreements were incompatible with Art. 3(1) of the Basic Law (Grundgesetz – GG), given that higher supplementary allowances were paid to workers who performed irregular night work. It further held that the legal consequence was an ‘upward adjustment’, in the form of retroactive payment of the supplementary allowances established for irregular night work for the disadvantaged night shift workers. In proceedings I., the Federal Labour Court additionally found that the employer will also be required to pay supplementary allowances for night shift work that are determined on the basis of the collectively agreed rules on supplementary allowances for irregular night work to the plaintiff in the future. The complainants are employers who were parties to the initial proceedings (complainants in proceedings I. 1. and II. 1.) as well as the employers’ collective bargaining associations, who were not parties to the initial proceedings (complainants in proceedings I. 2. and II. 2.). In particular, the constitutional complaints concern the question whether the parties concluding collective agreements, as associations within the meaning of Art. 9(3) first sentence of the Basic Law, are bound by Art. 3(1) of the Basic Law.

I. 

2

1. Within the current economic system, collective agreements are a central source of labour law (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 18, 18 <26>; 55, 7 <8>). They are concluded between parties to the collective agreement with reference to the general rules of private law (§§ 145 ff. of the Civil Code, Bürgerliches Gesetzbuch – BGB) through an independent procedure. The goal is to compensate for the structural disadvantages of dependent employees as to bargaining power through collective negotiations, thus aiming to create appropriate working and economic conditions ([...]).

3

Typically, collective agreements are characterised by their dual directionality. In the contractual part of the collective agreement, the parties to the collective agreement can agree the rights and obligations of the parties vis-à-vis one another. The regulatory part of the collective agreement contains rules regarding the content, the conclusion and the termination of employment contracts of third parties which were not involved in the conclusion of the agreement, as well as operational rules and rules on the organisation of the company (§ 1(1) Collective Agreements Act, Tarifvertragsgesetz – TVG in the version published on 25 August 1969 <Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 1323>, last amended by Art. 8 of the Act on Social Measures to Counteract the Impacts of the Covid-19 Pandemic <Social Protection Package II> of 20 May 2020 <BGBl I p. 1055>).

4

The rules in the collective agreement regarding the content, the conclusion and the termination of employment relationships have direct and compulsory legal effect between both parties bound by the collective agreement (§ 4(1) first sentence Collective Agreements Act). Thus, the contents of the collective agreement apply automatically, and independent of the acquiescence or notice of those bound by its terms ([...]). Parties to an employment contract who are also members of the parties to the collective agreement do not have to agree on the collective terms or even be aware that the collective terms apply ([...]). Generally, parties to an employment contract who are bound by the collective terms and are covered by the scope of application of the collective agreement may, with the exception of § 4(3) of the Collective Agreements Act, not deviate from the terms of the collective agreement ([...]).

5

2. The conclusion of collective agreements is an essential purpose of the labour coalitions protected by Art. 9(3) of the Basic Law (cf. BVerfGE 92, 365 <395>; 94, 268 <283>; 103, 293 <304 ff.>; 116, 202 <219>; 146, 71 <114 f. para. 131 f.>; 148, 296 <344 para. 116>). The scope of protection of the freedom of labour coalitions includes the existence and application of concluded collective agreements. It is the intention of the Basic Law that labour coalitions are free to set the rules of the collective agreement through the collective exercise of private autonomy (cf. BVerfGE 44, 322 <341> with further references; 50, 290 <367>; 84, 212 <224>; 146, 71 <114 f. para. 131, 119 f. para. 146 f.>). A collective agreement is therefore presumed to be correct (cf. BVerfGE 146, 71 <119 f. para. 146>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 14 November 2018 - 1 BvR 1278/16 -, para. 8; Order of the Third Chamber of the First Senate of 13 September 2019 - 1 BvR 1/16 -, para. 14). In principle, it may be presumed that the agreement negotiated by the parties is correct and that it duly balances the interests of both sides; there is no objective standard to judge the correctness more accurately (BVerfGE 146, 71 <120 para. 146>; cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 14 November 2018 - 1 BvR 1278/16 -, para. 8). This freedom is based on the historical experience that this approach is more likely than state arbitration to obtain results that are in the interest of the opposing groups and the common good (cf. BVerfGE 88, 103 <114 f.>; 146, 71 <119 f. para. 146>).

6

3. The Basic Law does not expressly state whether and to what extent the parties to a collective agreement are bound by the fundamental rights of the Basic Law, and especially the general guarantee of the right to equality in Art. 3(1) of the Basic Law, when concluding a collective agreement. There are also no legal provisions which make specific reference to the fundamental rights of the Basic Law.

7-10

[…]

II. 

11

The collectively agreed rules on supplementary allowances that the Federal Labour Court objected to in the challenged judgments concern supplementary allowances for night shifts and irregular night work.

12

1. The complainant in proceedings I. 1. is a member of the complainant in proceedings I. 2.; an employers’ association. This employers’ association and the trade union (...), district (...), concluded the framework collective agreement of 29 October 2005 (’MTV-I’), which came into force on 1 January 2006.

13

a) The framework collective agreement contains rules that differentiate between irregular night work and night shift work. In the framework collective agreement, irregular night work is defined by a temporal and a functional element. In a temporal sense, irregular night work is work that is performed between the hours of 10:00 p.m. and 6:00 a.m. (§ 8 no. 5 MTV-I). In a functional sense, irregular night work may not amount to shift work that is planned and extends over multiple days. Shift work, including night shift work, is defined in a functional sense. According to § 8 no. 6 first sentence of the MTV-I, shift work is work performed during regular working hours, which is planned with input from the works council, which lasts for at least five days and of which the employees must be informed at least three days in advance. Employees who carry out irregular night work receive an allowance of 50% for their work, according to the method of calculation provided in § 5 no. 2 MTV-I and in accordance with § 9 no. 1 b) MTV-I, whilst employees working night shifts only receive an allowance of 25% for their work in the night shift between 10:00 p.m. and 6:00 a.m. (cf. § 9 no. 1 d) MTV-I). Employees who work the night shift can generally also benefit from an entitlement to time off for a certain number of shifts worked (§ 7 no. 2 MTV-I), paid breaks (§ 5 no. 4 MTV-I) and the possibility to add up various supplementary allowances (§ 9 no. 4 MTV-I).

14

The framework collective agreement, in relevant part, contains the following provisions:

’§ 5 Working hours

[…]

(...)

§ 7 Additional paid time off

[…]

(...)

§ 8 Additional work, irregular night work, shift work, work on Sundays and public holidays

[…]

§ 9 Supplementary allowances for additional work, irregular night work, shift work, work on Sundays and public holidays
1. The following supplementary allowances are to be paid for additional work, irregular night work, shift work, work on Sundays and public holidays:
a) […]
b) for irregular night work 50%
c) […]
d) for work during night shifts between 10:00 p.m. and 6:00 a.m. 25%
e) - g) (…)
2. - 3. (…)
4. In cases where several supplementary allowances are applicable, apart from shift work supplementary allowances and dirt and hardship supplementary allowances, only the highest supplementary allowance, or only one of two supplementary allowances of the same value, is paid.

 (...)

§ 21 exclusion clause

[…]’

15

b) The complainant in proceedings I. 1. was sued by the plaintiff in the initial proceedings (hereinafter: the plaintiff), who works night shifts and is a member of the trade union (...) who is party to the collective agreement, in February 2019. The plaintiff sought the payment of a higher allowance than the one designated for night shift work in the framework collective agreement for his work at night time between October 2018 and January 2019. Furthermore, the plaintiff sought the determination that the complainant in proceedings I. 1. would from now on be required to pay an allowance of 50% for night shift work. [...]

16

aa) The competent Labour Court (Arbeitsgericht) rejected his claim in its judgment of 17 December 2019 - 14 Ca 201/19 -. [...]

17

bb) The Higher Labour Court (Landesarbeitsgericht) rejected the plaintiff’s appeal on points of fact and law in its judgment of 18 June 2020 - 1 Sa 10/20. [...]

18-19

cc) On the plaintiff’s appeal on points of law, the Federal Labour Court reversed the judgment of the Higher Labour Court with the decision challenged here [...] and ordered the complainant in proceedings I. 1. to make the payments sought. [...]

20

The Federal Labour Court held that the distinction made by the collective agreement between supplementary allowances for irregular night work (§ 9 no. 1 lit. b) MTV-I) and for night shift work (§ 9 no. 1 lit. d) MTV-I) violates Art. 3(1) of the Basic Law. It held that the parties to the collective agreement are not directly bound by the fundamental rights of the Basic Law when laying down rules in a collective agreement. [...]

21

The Federal Labour Court further held that, in principle, the standards of the general guarantee of the right to equality are nevertheless fully applicable to the rules in a collective agreement. The Federal Labour Court ruled that the fundamental rights of the Basic Law have indirect horizontal effects between private parties; they take effect as decisions of constitutional values and thus permeate private law relationships. As bodies exercising state authority, the courts must give effect to this permeating effect in their decisions. [...]

22-29

[…]

30

The Federal Labour Court found that it was unable to adopt an extended interpretation of the framework collective agreement in order to bring about the compatibility of § 9 no. 1 lit. d) MTV-I with Art. 3(1) of the Basic Law. The unequal treatment that is incompatible with Art. 3(1) of the Basic Law could only be remedied through ‘upward adjustment’. [...]

31-32

[…]

33

2. The complainant in proceedings II. 1. is a member of the complainant in proceedings II. 2. who is also an employers’ association. This employer’s association and district (...) of trade union (...) concluded the framework collective agreement for employees of (…), (…), (…) on 8 December 2004 (’MTV-II’), which came into force on 1 January 2005.

34

a) This framework agreement, like MTV-I, also differentiates between irregular night work and night shift work, which are each defined by a temporal and a functional element. In accordance with § 5 no. 1 lit. c) MTV-II, irregular night work is work performed between the hours of 9:00 p.m. and 6:00 a.m., insofar as the work does not amount to shift work. Shift work is planned with input from the works council. Employees who carry out irregular night work receive an allowance of 50% for work performed during night time in accordance with § 5 no. 2 lit. b) MTV-II, whilst employees who work night shifts only receive an allowance of 25% for work performed during night shifts between 10:00 p.m. and 6:00 a.m. According to the rules of the collective agreement, employees who work night shifts can also benefit from an entitlement to time off for a certain number of shifts worked (§ 4 no. 2 MTV-II), paid breaks (§ 3 no. 6 MTV-II) and the possibility to add up various supplementary allowances (§ 5 no. 3 lit. b) MTV-II).

35

The framework collective agreement, in relevant part, contains the following provisions:

‘§ 3 Working hours

(...)

[…]

(...)

§ 4 Time off for reasons of age or shift work

(...)

[…]

§ 5 Additional work, irregular night work, work on Sundays and public holidays

1. Definitions
a) […]

b) […]

(...)
c) Irregular night work
Irregular night work is work performed between the hours of 9:00 p.m. and 6:00 a.m., insofar as the work does not amount to shift work.

(...)

[…]

(...)
2. Supplementary allowances
For additional work, irregular night work, night shift work, or work on Sundays and other public holidays, the following supplementary allowances are to be paid:

a) […]
(...)
b) for irregular night work 50%
c) for shift work between the hours of 10:00 p.m. and 6:00 a.m. 25%

(...)

3. Calculation of supplementary allowances

a) […]

(...)
b) In cases where several supplementary allowances are applicable, only the highest supplementary allowance is to be paid. An exception to this rule is the supplementary allowance for shift work (§ 5(2) lit. c). This supplementary allowance is also payable if it applies in addition to other supplementary allowances.

(...)

§ 15 Preclusive time limit

[…]’

36

b) The complainant in proceedings II. 1. was sued by the plaintiff in the initial proceedings, who works night shifts and is a member of trade union (...), who is party to the collective agreement. The plaintiff sought the payment of the higher night work supplementary allowance of 50% of the applicable hourly wage before tax, minus the amounts received after tax, for night shifts worked between November 2018 and November 2019. [...]

37

aa) The competent Labour Court rejected his claim in its judgment of 19 February 2020 - 6 Ca 2361/19 -. [...]

38

bb) The Higher Labour Court rejected the plaintiff’s [...] appeal of the case on points of fact and law. [...]

39

cc) The plaintiff continued to pursue his claim of payment with an appeal on points of law to the Federal Labour Court. The Federal Labour Court initially suspended the proceedings of the appeal on points of law due to two referral proceedings to the Court of Justice of the European Union (CJEU) on the application and the content of the Charter of Fundamental Rights of the European Union with regard to the terms of collective agreements. The proceedings for a preliminary ruling before the Court of Justice of the European Union were decided with judgment of 7 July 2022 (cf. CJEU, Judgment of 7 July 2022, Coca-Cola European Partners Deutschland, C-257/21, C-258/21, EU:C:2022:529). The CJEU already answered the first of two questions in the negative. This question was whether a provision of a collective agreement which provides for a higher supplementary allowance for irregular night work than that established for regular night work is implementing Directive 2003/88 for the purposes of Article 51(1) of the Charter. The second (conditional) question, whether a collectively agreed rule that provides for a higher level of compensation for irregular night work than for regular night work is compatible with Article 20 of the Charter if that rule is intended to compensate not only for the adverse effects on health caused by night work but also for the burden arising from the greater difficulty in planning for irregular night work, was therefore not answered by the CJEU. Following this judgment of the CJEU, the Federal Labour Court, with its judgment of 22 March 2023, challenged here with the constitutional complaints in proceedings II., reversed the decision of the Higher Labour Court and amended the judgment of first instance.

40-41

[…]

III. 

42

The constitutional complaints challenge the judgments issued by the Federal Labour Court. With their constitutional complaints, the complainants in proceedings I. 1. and II. 1. each claim a violation of Art. 9(3) of the Basic Law and Art. 2(1) in conjunction with Art. 20(3) of the Basic Law (in the proceedings II., each in conjunction with Art. 19(3) of the Basic Law); in the proceedings II., the complainant in proceedings II. 1. additionally claims a violation of Art. 12(1) of the Basic Law and Art. 3(1) of the Basic Law (both in conjunction with Art. 19(3) of the Basic Law). The complainants in proceedings I. 2. and II. 2. each claim a violation of Art. 9(3) of the Basic Law as well as the right that is equivalent to fundamental rights in Art. 103(1) of the Basic Law; in the proceedings I., they additionally claim a violation of Art. 2(1) in conjunction with Art. 20(3) of the Basic Law, and in the proceedings II., they additionally claim a violation of Art. 3(1) of the Basic Law.

43-57

[…]

IV. 

58

Substantive statements on the constitutional complaints and the questions posed by the Federal Constitutional Court in relation to them were submitted by the Free State of Saxony, the Free and Hanseatic City of Hamburg, the Federal Labour Court, the Food, Beverages and Catering Industry Trade Union (Gewerkschaft Nahrung-Genuss-Gaststätten), the Federal Union of German Employers’ Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände e.V. – BDA), the Association of Food and Beverage Employers (Arbeitgebervereinigung Nahrung und Genuss e.V. – ANG), the German Federation of Trade Unions (Deutsche Gewerkschaftsbund – DGB) and the Collective Bargaining Association for the German Länder (Tarifgemeinschaft deutscher Länder – TdL). The complainants in both proceedings added to their submissions in response to the questions posed.

59-101

[…]

B.

102

The constitutional complaints of the complainants in proceedings I. 1. and II. 1. are admissible, whilst the constitutional complaints of the complainants in proceedings I. 2. and II. 2. are inadmissible. Although all complainants have standing to assert a possible violation of rights (see I. below), the constitutional complaints of the complainants in proceedings I. 2. and II. 2. do not meet the substantiation requirements with regard to the principle of subsidiarity (see II. below).

I. 

103

Pursuant to Art. 93(1) no. 4a of the Basic Law and § 90(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), a constitutional complaint can only be admissible if each of the complainants asserts that their fundamental rights – or rights equivalent to fundamental rights – have been violated by an act of public authority (standing). This requires that both the possibility of a violation of fundamental rights (cf. BVerfGE 140, 229 <232 para. 9>; 157, 300 <310 para. 25> – Signature quorums for Bundestag elections; established case-law), and the fact that the complainants are individually, directly and presently affected by the challenged decisions (cf. BVerfGE 140, 229 <232 para. 9>) is demonstrated in accordance with the substantiation requirements of § 23(1) second sentence, first half-sentence, § 92 of the Federal Constitutional Court Act.

104

Thus, all complainants have standing insofar as they claim a violation of their fundamental right under Art. 9(3) of the Basic Law (see 1. below). The complainants in proceedings I. 2. and II. 2. also sufficiently substantiated a possible violation of Art. 103(1) of the Basic Law (see 2. below).

105

1. All complainants have standing insofar as they claim a violation of Art. 9(3) of the Basic Law.

106

a) The protection afforded by Art. 9(3) of the Basic Law generally also encompasses the application of collectively agreed rules in individual employment contracts.

107

Art. 9(3) of the Basic Law protects the continued existence, organisational design and activities of labour coalitions, insofar as these serve the promotion of working and economic conditions (cf. BVerfGE 50, 290 <373 f.>; 84, 212 <224>; 100, 271 <282>; 103, 293 <304>). The protection extends to all activities which are typical for labour coalitions and covers, in particular, free collective bargaining, which is at the centre of the options available to labour coalitions in the pursuit of their objectives (cf. BVerfGE 103, 293 <304>; 116, 202 <219>; 146, 71 <114 f. para. 131>; 148, 296 <344 para. 116>). This specifically includes the conclusion of collective agreements (cf. BVerfGE 92, 365 <395>; 94, 268 <283>; 103, 293 <304 ff.>; 146, 71 <114 f. para. 131>) as well as the existence and application of concluded collective agreements (cf. BVerfGE 146, 71 <114 f. para. 131>).

108

The protections of Art. 9(3) of the Basic Law are not only directed against the general legal suppression or repeal of collective agreements achieved through free collective bargaining (cf. on this BVerfGE 146, 71 <116 para. 135 f.>). The application of collective agreements to the individual employment contracts within their scope of application is also protected. This is because free collective bargaining protected by Art. 9(3) of the Basic Law includes the legally binding effect of collective agreements for all employees subject to the collective agreement (cf. BVerfGE 44, 322 <341>; 92, 26 <44 f.>; 94, 268 <283 f.>; 146, 71 <114 f. para. 131>; […]). The purpose explicitly stated by Art. 9(3) first sentence of the Basic Law, to protect and promote working and economic conditions, is aimed at a regulatory effect, which collective agreements can only fulfil if their legal effect and their application in individual employment contracts is also covered by the protection of the fundamental right. At the same time, this protection adds to the freedom to establish, join and contribute to labour coalitions through the right to invoke the results of the agreement secured through collective bargaining in general. The Constitution does not prescribe a concrete way in which these rights are to be implemented. In ordinary (non-constitutional) law, it is especially § 4 of the Collective Agreements Act which is intended to give effect to them.

109

b) In this regard, the complainants have sufficiently demonstrated the possibility of a violation of their fundamental right under Art. 9(3) of the Basic Law. They point to the reasons for the decisions of the Federal Labour Court, where it found that differentiating terms of the collective agreement with regard to supplementary allowances for irregular night work and night shift work are incompatible with Art. 3(1) of the Basic Law and therefore the more beneficial rules on supplementary allowances apply. This means that the terms which the complainants in proceedings I. 2. and II. 2. freely agreed upon do not apply for constitutional reasons, which are therefore subject to the review of the Federal Constitutional Court (in detail see para. 133 below).

110

aa) The complainants in proceedings I. 1. and II. 1. are addressed by the challenged decision and therefore are individually, presently and directly affected by the verdicts, which in particular order them to make payments beyond the terms of the collective agreement (cf. BVerfGE 140, 42 <57 para. 56>). This prevents them from invoking the agreed results of their membership of a labour coalition.

111

bb) The complainants in proceedings I. 2. and II. 2. also have standing, even though they are not themselves addressed by the challenged decisions and the verdicts, insofar as a claim of payment is awarded, do not make direct reference to the terms of the collective agreement.

112

Under specific circumstances it is possible, including for third parties, to be adversely affected by other aspects of a decision aside from the verdict itself (cf. BVerfGE 140, 42 <57 para. 56>), if a legal adverse effect and not just a de facto encroachment as a mere reflex is caused (cf. BVerfGE 13, 230 <232 f.>; 78, 350 <354>; 108, 370 <384>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 11 April 2011 - 1 BvR 2390/10 -, para. 5 f.; […]).

113

This is the case here. The terms of the collective agreement regarding supplementary allowances for night shift work are found to be inapplicable, which in the challenged decisions was mainly based on the incompatibility of the terms of the collective agreement with Art. 3(1) of the Basic Law, and the terms of the collective agreement regarding supplementary allowances for irregular night work are explicitly applied to cases of night shift work. This amounts to a legal adverse effect and not just a de facto encroachment on the complainants in proceedings I. 2. and II. 2. as parties to the collective agreement. The terms on supplementary allowances for night shift work they have collectively agreed are deprived of legal effect for constitutional reasons, whilst those on irregular night work are given additional legal effects. It is irrelevant in this regard that there is no procedural binding effect as a result of the individual legal dispute for the parties to the collective agreement. Rather, the relevant factor to establish standing to assert a possible violation of rights is that the decisions of the court have substantive legal effects vis-à-vis associations that were not parties to the proceedings (cf. BVerfGE 60, 7 <13>). Consequently, it is sufficient that the terms of the collective agreement lose their legally binding nature in relation to the members of the associations bound by the collective agreement that were parties to the initial legal disputes. Whether, exceptionally, the standing to assert a possible violation of rights in this case could also be established through the de-facto effects of a decision rendered in an individual legal dispute on free collective bargaining therefore does not have to be decided here. The arguments of the complainants in proceedings I. 2. and II. 2 with regard to the effects of the decisions on further individual claims or an arguably weaker position in future collective negotiations, are therefore irrelevant here.

114

2. The complainants in proceedings I. 2. and II. 2 also have standing to assert a possible violation of rights as a result of the challenged court decisions with regard to their right to be heard protected by Art. 103(1) of the Basic Law.

115

Art. 103(1) of the Basic Law guarantees that the parties are given an opportunity to present their case in court proceedings, enabling them to comment on the facts and the legal situation (cf. BVerfGE 60, 175 <210>; 89, 28 <35>; 107, 395 <409>); however, Art. 103(1) of the Basic Law does not guarantee that the proceedings conform to any particular format (cf. BVerfGE 6, 19 <20>; 15, 303 <307>; 36, 85 <87>; 67, 39 <41>; 89, 381 <392>; 101, 106 <129>). Anyone who is party to court proceedings, participates in a comparable position or is directly affected by the proceedings has a right to be heard (cf. BVerfGE 101, 397 <404>).

116

The complainants in proceedings I. 2. and II. 2. have shown that the challenged decisions may violate this guarantee. Although they were not parties to the initial proceedings, their fundamental right in Art. 9(3) first sentence of the Basic Law was legally affected by the decisions (cf. para 113 above). Despite this, they were not given an opportunity to submit statements in the initial proceedings.

II. 

117

However, the constitutional complaints of the complainants in proceedings I. 2. and II. 2. are nevertheless inadmissible, because their submissions on the principle of subsidiarity do not meet the substantiation requirements of § 23(1) second sentence, first half-sentence, § 92 of the Federal Constitutional Court Act.

118-131

[…]

C.

132

The admissible constitutional complaints of the complainants in proceedings I. 1. and II. 1 are well-founded. The challenged judgments violate their fundamental right under Art. 9(3) first sentence of the Basic Law. Whether the judgments of the Federal Labour Court additionally violate the fundamental rights of the complainants in proceedings I. 1. and II. 1. under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law, or the fundamental rights of the complainant in proceedings II. 1. under Art. 12(1) of the Basic Law or Art. 3(1) of the Basic Law, does not have to be decided.

I.

133

1. Constitutional review in the context of a constitutional complaint directed against a decision of the ordinary courts is generally limited to the examination whether the interpretation or application of ordinary law in the challenged court decision rests on a general failure to recognise the significance and scope of the fundamental rights at issue or is arbitrary (cf. on this BVerfGE 18, 85 <92 f.>; 85, 248 <257 f.>; 108, 282 <294>; 134, 242 <353 para. 323>). The Federal Constitutional Court generally only considers whether court decisions contain a violation of specific constitutional law (cf. BVerfGE 1, 418 <420>; 18, 85 <92 f.>; 106, 28 <45>; established case-law). If, however, the ordinary court whose decision is being challenged by the constitutional complaint conducted its own interpretation and application of fundamental rights provisions of the Basic Law, it is the task of the Federal Constitutional Court to determine the scope and limits of the fundamental rights of the Basic Law and to establish whether the extent and significance of fundamental rights of the Basic Law were taken into account in accordance with constitutional law (cf. BVerfGE 108, 282 <294> with further references). Under this duty to safeguard and develop constitutional law, and especially to determine the different functions of a fundamental rights provision, the examination of ordinary court decisions by the Federal Constitutional Court is not limited to whether the ordinary courts in question based their decisions on constitutional law in a way that is not arbitrary; rather, it falls to the Federal Constitutional Court to make the final decision on the interpretation and application of constitutional law (cf. BVerfGE 108, 282 <295>).

134

2. In the challenged court decisions, the Federal Labour Court denied the legal effect of terms in a collective agreement regulating the supplementary allowances for night shift work, because it found them to be contrary to Art. 3(1) of the Basic Law, and found, as a legal consequence of this violation of equality, that supplementary allowances in line with those paid for irregular night work should be awarded (‘upward adjustment’). The challenged decisions rest on the substance and scope of Art. 3(1) of the Basic Law and its relationship to the protection of free collective bargaining protected by Art. 9(3) of the Basic Law and were therefore subject to full review by the Federal Constitutional Court.

II.

135

The challenged judgments of the Federal Labour Court violate the freedom of labour coalitions (Art. 9(3) of the Basic Law) of the complainants in proceedings I. 1. and II. 1. The interpretation adopted by the Federal Labour Court, according to which the collectively agreed rules on supplementary allowances for night shift work are incompatible with Art. 3(1) of the Basic Law and the higher supplementary allowances paid for irregular night work must consequently be applied (‘upward adjustment’), does not take into account the freedom of labour coalitions in the way required by constitutional law.

136

The complainants in proceedings I. 1. and II. 1. can invoke the protection of Art. 9(3) of the Basic Law for the application of the collective agreements concluded by their associations (see 1. below). Their fundamental right has been violated: It is true that parties to a collective agreement, who are free to engage in collective bargaining as private actors, must take into account the principle of equal treatment (Art. 3(1) of the Basic Law) when laying down rules in a collective agreement (see 2. below). However, in reviewing the collective agreements, the Federal Labour Court failed to recognise the significance that free collective bargaining protected by Art. 9(3) of the Basic Law has for the scope of the binding effect of Art. 3(1) of the Basic Law (see 3. below) and for the consequences of a violation of Art. 3(1) of the Basic Law (see 4. below).

137

1. The challenged judgments impair the freedom of labour coalitions protected by Art. 9(3) of the Basic Law of the complainants in proceedings I. 1. and II. 1.

138

a) Art. 9(3) first sentence of the Basic Law guarantees the right to form associations to safeguard and improve working and economic conditions. This freedom of labour coalitions confers rights on individuals as members of an occupation, as well as trade unions or employers and their associations (cf. BVerfGE 148, 296 <343 para. 113>). On the individual level, the multidimensional freedom of labour coalitions protects the right to establish a coalition, to join an existing coalition or to refrain from doing so, and to participate in those activities of labour coalitions that are protected by the Constitution (cf. BVerfGE 19, 303 <312>; 28, 295 <304>; 44, 322 <352>). On a collective level, the fundamental right especially protects the establishment and the existence of labour associations as well as specific activities of labour coalitions (cf. BVerfGE 44, 322 <341> with further references; 50, 290 <367>; 84, 212 <224>; 146, 71 <114 f. para. 131, 119 f. para. 146 f.>). It also covers, in particular, free collective bargaining, which is at the centre of the options available to labour coalitions to achieve their objectives. The state refrains from exerting influence and leaves free agreements on economic and working conditions for the most part to the labour coalitions, including, in particular, agreements on wages and other material working conditions (cf. BVerfGE 94, 268 <283>; 100, 271 <282>; 103, 293 <304>; 116, 202 <219>). This freedom to independently resolve these conflicts of interest is based on the historical experience that this approach is more likely than state arbitration to obtain results that are in the interest of the opposing groups and the common good (cf. BVerfGE 88, 103 <114 f.>; 146, 71 <119 f. para. 146>). The negotiation of collective agreements is an essential purpose of labour coalitions (cf. BVerfGE 92, 365 <395>; 94, 268 <283>; 103, 293 <304 ff.>; 116, 202 <219>; 146, 71 <114 f. para. 131 f.>; 148, 296 <344 para. 116>). In particular, the protection extends to the free conclusion of collective agreements (cf. BVerfGE 92, 365 <395>; 94, 268 <283>; 103, 293 <304 ff.>). This encompasses the existence and application of collective agreements that have been concluded (cf. BVerfGE 146, 71 <114 f. para. 131>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 14 November 2018 - 1 BvR 1278/16 -, para. 4). The protection of Art. 9(3) of the Basic Law also includes the ability to invoke the agreements concluded through free collective bargaining (cf. para. 108, 147).

139

b) By not respecting the differentiations in the collective agreement between different forms of night work for constitutional reasons, the challenged judgments impaired the rights guaranteed by Art. 9(3) of the Basic Law of the complainants in proceedings I. 1. and II. 1. in their capacity as employers. In this way, the complainants were prevented from invoking the collectively agreed results of the membership of the association.

140

2. However, the terms of a collective agreement cannot be invoked in all cases without restrictions. Rather, the parties to a collective agreement must take into account the principle of equal treatment in Art. 3(1) of the Basic Law when agreeing the terms of a collective agreement. This is because the fundamental right to freedom of labour coalitions is not guaranteed without limitation; it can be restricted (see a) below). One of these limitations is that the parties are bound in principle by the general guarantee of the right to equality under Art. 3(1) of the Basic Law (see b) below). This limitation can be directly implemented by the courts (see c) below).

141

a) The fundamental right to freedom of labour coalitions is guaranteed without reservation, but not without limitation. The freedom of labour coalitions is not a special case of the general freedom of association, and thus not subject to the limitations of Art. 9(2) of the Basic Law (cf. BVerfGE 146, 71 <118 para. 143>). Restrictions can be justified by conflicting fundamental rights of third parties and other constitutional rights (cf. BVerfGE 28, 243 <260 ff.>; 30, 173 <193>; 57, 70 <98 f.>; 84, 212 <228>; 100, 271 <283>; 103, 293 <306>; 146, 71 <119 para. 143>; 148, 296 <344 f. para. 117>). Conflicting constitutional law can justify an interference if opposing fundamental rights positions must be balanced within the scope of protection of Art. 9(3) first sentence of the Basic Law (cf. BVerfGE 84, 212 <228>; 92, 365 <394 f.>; 100, 214 <223 f.>).

142

b) One of the restrictions on free collective bargaining is that parties to a collective agreement, when establishing collectively agreed rules, are in principle bound by the general guarantee of the right to equality under Art. 3(1) of the Basic Law. This follows from Art. 9(3) of the Basic Law, which does not just protect the individual and collective freedom of labour coalitions (see aa) below), but also establishes a unique link between them (see bb) below).

143

aa) The fundamental right under Art. 9(3) of the Basic Law is, first and foremost, a fundamental freedom (cf. BVerfGE 146, 71 <114 para. 130>; 148, 296 <343 f. para. 115>). It protects the individual freedom to establish associations that serve to promote economic and working conditions, and to jointly pursue this aim (cf. BVerfGE 92, 365 <393>), to stay away from these associations or to withdraw from them (cf. BVerfGE 116, 202 <218>; 146, 71 <114 para. 130>; 148, 296 <343 f. para. 115> with further references). This individual element persists in the collective freedom of labour coalitions. As a consequence, the protection of the freedom of labour coalitions also extends to the right of associations themselves to pursue the objectives enshrined in Art. 9(3) of the Basic Law by specific activities which are typical for labour coalitions. Under Art. 9(3) of the Basic Law, labour coalitions are generally free to choose the means they consider suitable to achieve this objective (cf. BVerfGE 92, 365 <393 f>; 100, 271 <282>; 116, 202 <219>; 146, 71 <114 para. 130>; 148, 296 <343 f. para. 115>; established case-law).

144

A specific activity typical for labour coalitions is the setting of rules in a collective agreement, which must be regarded as an expression of collectively exercised autonomy of private actors (cf. BVerfGE 146, 71 <120 para. 147>). The purpose of free collective bargaining is to compensate for the structural disadvantages of individual employees when concluding employment contracts through collective action, in order to achieve a relative balance when negotiating wages and working conditions (cf. BVerfGE 84, 212 <229>; 92, 365 <395>; 146, 71 <119 f. para. 146>). The fundamental rights guarantee of free collective bargaining ensures that employees and employers are free to resolve their conflicting interests independently (cf. BVerfGE 88, 103 <114 f.>; 146, 71 <119 f. para. 146>). This freedom is based on the historical experience that this approach is more likely than state arbitration to obtain results that are in the interest of the opposing groups and the common good. The underlying expectation is that the free negotiation process serves to settle and bring order to working and economic life. A collective agreement is therefore presumed to be correct. Principally, it may be presumed that the agreement negotiated by the parties is correct and that it duly balances the interests of both sides; there is no objective standard to judge the correctness more accurately (cf. para. 5, 138 above).

145

The balance of interests thus created is not to be measured by expectations of substantive results in the sense of a ‘guarantee of correctness’ (cf. BVerfGE 146, 71 <119 f. para. 146>). The autonomy of private actors precisely serves to protect the ability to structure legal relationships in accordance with individual will (cf. BVerfGE 89, 214 <231>), and thus fundamentally opposes prescribed rules due to the role assigned to free collective bargaining ([...]).

146

bb) Individual freedom and the exercise of free collective bargaining do not exist independently of one another. With regard to fundamental rights, they are connected in two different ways. Free collective bargaining generally also encompasses the legally binding effects of the collective agreements on individual employment contracts subject to the collective agreement (see (1) below). This also means that, in order to protect their members, parties to a collective agreement are bound by the general guarantee of the right to equality under Art. 3(1) of the Basic Law when establishing binding collective agreements (see (2) below).

147

(1) The purpose of promoting working and economic conditions can only be achieved by the labour coalitions protected by Art. 9(3) first sentence of the Basic Law if the agreements concluded by them have binding legal effect on individual employment contracts of those subject to the collective agreement. This binding legal effect of collective agreements in individual employment contracts subject to the collective agreement on both sides falls under the protection of free collective bargaining under Art. 9(3) first sentence of the Basic Law (cf. BVerfGE 44, 322 <341>; 92, 26 <44 ff.>; […] see para. 108 above). Art. 9(3) of the Basic Law not only guarantees the freedom to establish, join, remain in, stay away from, withdraw from and contribute to labour coalitions, but is also complemented by the right of employees and employers to invoke the ’fruits’ of the collective bargaining process on an individual level. The freedom to join a labour coalition protected by Art. 9(3) of the Basic Law only achieves the purpose of labour coalitions if the results of participation in freely established coalition is of a binding nature.

148

This binding effect of the terms of collective agreements expands the individual freedom of the parties to the collective agreement. Members of labour coalitions, and especially employees, benefit from the collective assertion of interests, which brings with it greater bargaining power and, as a rule, achieves well-balanced results through a balanced and structured negotiation with the other party. Free collective bargaining as guaranteed by Art. 9(3) of the Basic Law provides a constitutional basis for securing the collective enforcement of interests and the implementation of the results in individual employment contracts and thus especially guarantees the social protection of dependent employees (cf. BVerfGE 146, 71 <120 para. 147>; Decisions of the Federal Labour Court, Entscheidungen des Bundesarbeitsgerichts – BAGE 173, 205 <212 f. para. 26>; Federal Labour Court, Judgment of 14 October 1997 - 7 AZR 811/96 -, para. 16; established case-law).

149

(2) While individual freedom is, in principle, strengthened by the legally binding effect of collective agreements, it can also be jeopardised by the determination of collective working and economic conditions ([...]). The fundamental right to freedom of labour coalitions protects members of the parties to collective agreements from the ensuing threats to freedom, by generally requiring the parties to the collective agreements to respect the general guarantee of the right to equality when laying down the rules in a collective agreement. This is because individual members of labour coalitions typically cannot directly influence specific collective negotiations, yet their outcome becomes legally binding for them ([...]). They are dependent on their interests being properly represented in the negotiations and adequately reflected in the outcome. The larger and more varied the groups represented by a party to a collective agreement are, the more difficult it is to represent their interests during negotiations and in the material balancing of interests. Despite preceding internal democratic participation of members, the parties to the collective agreement sound out relevant interests and then gauge in view of collective bargaining policy which of these will be part of the negotiation of the collective agreement. In the process, individual interests will inevitably be set aside in the interest of the negotiating position ([...]). There is no guarantee that a position established in the internal process to formulate the coalition’s intentions will be reflected in the outcome of the adversarial balancing of interest vis-à-vis the other party to the collective agreement.

150

This risk, which forms part of the freedom to enter a labour coalition as a private party, is to a large extent the necessary price for collective bargaining. This structural risk is also not fully mitigated by the option to withdraw from the self-determined membership of a labour coalition ([...]). The possibility of leaving the association for the future does not offer sufficient direct protection of members of labour coalitions from unjustified disadvantages in individual collective agreements. Additionally, this risk would have to be met by relinquishing precisely that power to shape working and economic conditions which Art. 9(3) of the Basic Law seeks to bestow on individual employees. With their exit, members must also relinquish the additional advantages of membership of an association, without a direct and equivalent alternative to collective agreements in regulating employment relationships being available.

151

The principle of equal treatment within an association, too, which in principle can result in claims of individuals against the association, does not provide sufficient protection for members. Its effect is limited to the internal relationship between the association and its members and only provides members with an internal claim not to be disadvantaged by the association against their will and without an objective reason ([…]). As a rule, the principle of equal treatment within an association does not apply to the setting of rules in a collective agreement, which has external effect (cf. BAGE 122, 134 <151 para. 58>; […]). The members of the association cannot trust that the will of the majorities within the association will also be reflected in the setting of rules by the parties to the collective agreement, which hold some fundamental rights. The legitimate expectation of members generally only extends to the association of which they are members. It does not apply to the other party to the collective agreement, which as a rule will represent opposing interests. The objectives of one party to the collective agreement with regard to a specific collectively agreed rule does not necessarily align with the objectives of the other party to the collective agreement. This already follows from the economic and social realities of the parties to a collective agreement and the numerous association members, as well as the manifold conflicts of interest which are temporarily pacified by the ’great compromise of the collective agreement’. The principle of equal treatment within an association does not create a direct claim for compensation for members of the association in case of possible unequal treatment as a result of the balance of interests achieved through free collective bargaining.

152

(3) Neither Art. 1(3) of the Basic Law nor the Basic Law’s legislative history preclude the binding effect of Art. 3(1) of the Basic Law on parties to collective agreements. The direct binding effect of fundamental rights was discussed by the Parliamentary Council but was not conclusively decided (see especially the debate in the Parliamentary Council, Committee on Fundamental Policy Issues, 26th session of 30 November 1948 [...]). The legislative materials thus remain inconclusive. However, Art. 9(3) second sentence of the Basic Law also does not permit the converse conclusion, that a binding effect of fundamental rights between private parties is precluded beyond the scope of application explicitly specified therein ([...]).

153

c) This limitation to the freedom of collective bargaining directly follows from the Constitution. A legal provision that expressly lays down the consequences of a collectively agreed rule violating the principle of equal treatment is not required.

154

The constitutional requirement that the legislator must take all the essential decisions itself in all key legislative areas (cf. BVerfGE 49, 89 <126 f.>; 84, 212 <226>) applies to the relationship of the citizen to the state (cf. BVerfGE 84, 212 <226>; 88, 103 <115 f.>). If the state interferes with the freedoms granted by the fundamental rights of the Basic Law, it may only do so pursuant to a law. To a large extent, it may only take action if it is authorised to do so by the Constitution or ordinary law. Especially in the area of employment law, which concerns the relationships between two equal holders of fundamental rights or between private parties, it is not imperative that these relationships must be structured through statutory provisions (cf. BVerfGE 88, 103 <116>). The courts are tasked with developing adequate solutions for the relationships between equal holders of fundamental rights through their case-law (cf. BVerfGE 88, 103 <116>). In the field of employment law, the historical significance of case-law in structuring the relationships between parties to collective agreements must be taken into account. The labour courts are thus called upon to derive from the general legal sources that apply between citizens or private associations the substantive law through the application of recognised methods of developing law. This also applies in cases where a statutory provision would be necessary due to a constitutional duty of protection (cf. BVerfGE 84, 212 <226 f.>; 88, 103 <115 f.>); not only with regard to the relationship between the labour coalitions themselves, but also for the collective agreements created through free collective bargaining in relation to the individuals bound by these collective agreements as a result of their membership of these coalitions. It is only in this way that the courts can satisfy the obligation bestowed on them by the Basic Law; to on the one hand adequately resolve the legal dispute brought before them (cf. BVerfGE 84, 212 <226 f.>), whilst respecting the leeway to design of the labour coalitions legitimised through membership, on the other. The fact that the Federal Constitutional Court repeatedly stated that it is the ‘task of the legislator’ to set out the details of the freedom of labour coalitions (cf. BVerfGE 50, 290 <368 f.>; 57, 220 <245 ff.>), does not merit a different conclusion (cf. BVerfGE 84, 212 <226 f.>).

155

Based thereon, neither the binding effect of Art. 3(1) of the Basic Law on labour coalitions, nor their exercise of powers which creates this binding effect of fundamental rights, requires detailed statutory provisions. When a labour coalition disregards the binding effect of fundamental rights in the exercise of their freedom of labour coalitions, the consequences follow directly from the Constitution. Therefore, the ordinary courts can deny the validity of collectively agreed rules which they find in violation of the Constitution due to an incompatibility with Art. 3(1) of the Basic Law with reference to the limitations of the freedom of collective bargaining. Furthermore, they can order specific legal consequences to resolve the conflict between the employees and employers bound by the collective agreement – the two equal holders of fundamental rights directly involved in the conflict.

156

Ultimately, the conflicts arising in individual labour law disputes are the consequence of the fact that both the relationship between the parties to the collective agreement protected by Art. 9(3) of the Basic Law and the relationship between them and the employees connected to them through membership remains unregulated. These multipolar relationships have not been regulated by the parliamentary legislator, despite their relevance for fundamental rights. It therefore falls upon the labour courts to determine the relevant legal rules as part of their task to provide legal protection. The fact that the parties to the collective agreement are, in principle, bound by the general guarantee of the right to equality under Art. 3(1) of the Basic Law (see para. 142-152 above) not only requires the courts to examine individual cases against this standard, but also requires a judicial decision on the consequences of a violation in an individual case.

157

3. In its review of the collective agreements which form the subject of the initial proceedings, the Federal Labour Court violated Art. 9(3) of the Basic Law.

158

Given that parties to collective agreements are bound by the general guarantee of the right to equality, both the purpose of collective bargaining – allowing for negotiations of collectively agreed rules that are in principle free – and the ensuing margin of appreciation and assessment of the parties and their leeway to design must be taken into account (see a) below); this limits the scope of judicial review of the rules at hand to a review of arbitrariness (see b) below). Although the rules on supplementary allowances which have been reversed in the case at hand give rise to unequal treatment within the meaning of Art. 3(1) of the Basic Law, the courts cannot find them to be arbitrary in light of the leeway afforded to parties to a collective agreement by Art. 9(3) of the Basic Law (see c) below).

159

a) The fact that the parties to the collective agreements are bound by fundamental rights provides a form of basic protection for the equality of the members of the associations subject to the rules of the collective agreement, given that these rules are legally binding on them. At the same time, by forming part of the freedom of collective bargaining, the fundamental rights must take into account the purpose of collective bargaining – to permit an essentially free negotiation of collectively agreed rules.

160

aa) In making use of their constitutionally conferred competence of regulating working and economic conditions, the parties to the collective agreement have a margin of appreciation and assessment and leeway to design (cf. Federal Constitutional Court, Orders of the Third Chamber of the First Senate of 18 April 2008 - 1 BvR 759/05 -, para. 57; of 17 December 2012 - 1 BvR 488/10 -, para. 28 and of 20 February 2020 - 1 BvR 2071/18 -, para. 16). The leeway granted to the parties to the collective agreement, which are rooted in the freedom of labour coalitions and must be distinguished from the leeway given to the legislator, are both a prerequisite for the free conclusion of collective agreements protected by Art. 9(3) of the Basic Law on the collective level and a requirement for realising the gains in individual freedom of coalition members, made possible by the collective pursuit of their own interests. The fundamental rights guarantee of free collective bargaining ensures that employees and employers are free to negotiate their conflicting interests independently. A collective agreement represents a compromise which is the result of a specific negotiation situation; the Constitution empowers the parties to conclude a collective agreement. In principle, it is for the parties to the collective agreement, due to their specific interest and knowledge of the political circumstances of collective bargaining, to determine whether and for which aspects collectively agreed rules should be created and which specific criteria should impact their design. For this purpose, they may also make use of typification and generalisations and are not required to choose the solution which may objectively be the most rational and expedient. The parties to the collective agreement are even entitled to create rules which affected individuals might consider to be unfair in individual cases and which might not necessarily appear expedient to outsiders (cf. Federal Labour Court, Judgments of 17 December 2009 - 6 AZR 665/08 -, para. 19; of 22 February 2023 - 10 AZR 397/20 -, para. 68 and of 20 July 2023 - 6 AZR 256/22 -, para. 39). If there is an actual lack of information in areas to be governed by collectively agreed rules, this precedence of prognosis also impacts the extent of the leeway afforded to the parties.

161

bb) This leeway to design protected by fundamental rights is itself however limited by the fundamental rights of the members of the parties to the collective agreement, with which it must be reconciled. Generally, the leeway to design of the parties to a collective agreement becomes wider the more closely the rules in the collective agreement concern the core working and economic conditions. The extent of the leeway to design of the parties to the collective agreement in a specific case depends, in particular, on the subject matter, its complexity, the fundamental rights affected as well as the way and extent to which individuals bound by the collective agreement are affected. In particular, this leeway is more limited where differentiations made in collectively agreed rules make reference to personal attributes or where there are indications that minorities are affected and their or specific group interest have been systematically neglected. Such a situation may arise especially in cases where an overall assessment of the collectively agreed rules indicates that specific needs for protection are systematically overlooked or if there are certain indications that minority interests are systematically neglected. In such cases, the presumption that the agreement negotiated by the parties to a collective agreement is correct cannot apply.

162

b) The extent of judicial review regarding the terms of a collective agreement against the standard of the fundamental rights of the Basic Law depends on the leeway granted to the parties of a collective agreement in an individual case.

163

Where rules in collective agreements concern core working and economic conditions and it is not ascertainable that there is any specific need for protection or indications that the interests of minorities have been neglected, judicial review based on the standards of Art. 3(1) of the Basic Law is limited to whether the rules concerned are arbitrary in light of the leeway of the contracting parties protected by Art. 9(3) of the Basic Law.

164

aa) The parties to the collective agreement cannot be held to act in an arbitrary manner simply because they did not choose the most expedient, rational or fair solution from among several possible solutions (cf. regarding legislation BVerfGE 55, 72 <90>; 89, 132 <141 f.>). The terms of a collective agreement are only arbitrary if the unequal treatment of different cases is no longer compatible with the idea of justice, that is, where there are no plausible grounds for differentiation (cf. regarding legislation BVerfGE 76, 256 <329>; 85, 176 <187>; 101, 275 <291>; 115, 381 <389>; 141, 1 <39 para. 94>). This is especially the case if the lack of objectivity of the differentiation is evident (cf. regarding legislation BVerfGE 89, 132 <142>; 99, 367 <389>; 126, 331 <367>; 145, 106 <143 para. 101>; BVerfGE 168, 1 <49 para. 141> – Transfer of business assets between partnerships).

165

bb) When examining whether the terms of the collective agreement which differentiate between different cases meet the standards of the general guarantee of the right to equality, all objective grounds must be considered. The negotiation process of parties to a collective agreement, which hold some fundamental rights, is characterised by a process of give and take within a complex regulatory context. There is no reason for holding them to a higher standard than the legislator.

166

(1) Even with regard to the legislator, it is irrelevant whether the grounds which are intended to justify the differentiation under constitutional law were considered in the legislative process and were documented in the legislative materials (cf. BVerfGE 21, 292 <299>; 85, 238 <245>; 133, 1 <14 para. 46>). It is not the subjective arbitrariness of the legislator which leads to the determination of a violation of the general guarantee of the right to equality, but rather the objective inappropriateness of the rule in relation to the actual situation to which it is supposed to apply (cf. BVerfGE 130, 131 <144>). The decisive factor is that the result of the legislative process does not fail to meet the requirements of the Basic Law (cf. BVerfGE 75, 246 <268>; 130, 131 <144>; 133, 1 <14 para. 46 >; 143, 246 <345 para. 279>; 163, 107 <138 f. para. 86>; regarding the remuneration of civil servants, however, see BVerfGE 130, 263 <301 f.>). In this regard, grounds that appear likely in light of the legislative will, but which were not specifically mentioned in the legislative materials, must also be considered (cf. BVerfGE 151, 101 <136 para. 88 f.>).

167

(2) No stricter standards apply to parties to a collective agreement. The factual and legal leeway to design bestowed by Art. 9(3) of the Basic Law is not subject to a transparency requirement prescribed by fundamental rights. The process of free collective bargaining, unlike the requirements established for the legislative process, does not have to meet specific standards which aim to ensure the transparency of the decision-making process and the decision reached (cf. BVerfGE 143, 246 <345 f. para. 279>). The legitimacy of the collective agreement is based solely on the relationship of membership between an individual member of the labour coalition and the labour coalition as a party to the collective agreement. There is neither a basis nor a need for the disclosure of the grounds for a differentiation, much like the objectives of the parties to the collective agreement in general. In laying down rules in a collective agreement through the process of free collective bargaining, the parties to the collective agreement tend to pursue multifaceted objectives, which are based on a complex set of reasons and are not necessarily strictly coherent. They are the result of negotiation processes, which, especially towards the end, are commonly marked by compromises which do not strictly reflect their objectives in all dimensions, but rather create an overall result that remains tenable for both parties to the negotiation. It is solely the result of the negotiations as agreed by all parties, not the goals on which this result was based, that is of relevance. Therefore, neither the prevailing objectives nor those further objectives considered to be self-evident by the parties to the collective agreement must be put in writing. Furthermore, there is no need for protection of those bound by the collective agreement from a transparency perspective. In case of doubt, they are entitled to request information from ‘their’ party to the collective agreement through their membership.

168

(3) When considering the question whether the terms of the collective agreement are compatible with the general guarantee of the right to equality, a review of arbitrariness cannot be limited to the consideration of only those justifying objectives that are reflected in the text of the collective agreement. Rather, much like in the case of the legislator, it is sufficient that reasonable grounds inherent in the matter or based on sound objective reason can be found for the differentiating collectively agreed rules (cf. Federal Labour Court, Judgment of 20 July 2023 - 6 AZR 256/22 -, para. 39; Baden-Württemberg Higher Labour Court, Order of 20 September 2023 - 12 Sa 90/20 -, para. 66 ff.; differently Federal Labour Court, Judgment of 23 August 2023 - 10 AZR 384/20 -, para. 43 ff. and of 15 November 2023 - 10 AZR 163/23 -, para. 52 ff.).

169

c) In light of the foregoing, the Federal Labour Court violated Art. 9(3) first sentence of the Basic Law with its review of the collective agreements. Under the principles set out above, the judicial review of the challenged rules on supplementary allowances based on the standard of the general guarantee of the right to equality under Art. 3(1) of the Basic Law was limited to a review of arbitrariness (see (aa) below). The Federal Labour Court correctly identified cases of unequal treatment when reviewing the terms of the collective agreements against the standards of Art. 3(1) of the Basic Law (see (bb) below). However, with regard to the leeway bestowed on the parties to the collective agreement under Art. 9(3) of the Basic Law, such unequal treatment is not arbitrary and therefore cannot be regarded as a violation by the courts.

170

aa) The review of the rules on supplementary allowances at issue here is limited to a simple review of arbitrariness.

171

(1) The challenged rules on the supplementary allowances paid to workers who perform irregular night work and those paid to workers who perform night shift work relate to the core of the leeway to design of the parties to the collective agreement, which is protected by Art. 9(3) of the Basic Law. Collectively agreed rules on supplementary allowances for irregular night work and night shift work are very common. Such collectively agreed terms affect basic elements of the exchange of services, which are especially subject to the presumption that the collective agreement is correct (cf. BVerfGE 94, 268 <285>). They also serve the protection of health, since it has been proven that night work itself is unhealthy.

172

(2) The differences in supplementary allowances are also not based on personal attributes in the sense of Art. 3(3) of the Basic Law. There are also no other signs of serious failures in representation. The statements made in both proceedings show that the unequal treatment of night shift workers that results from the rate of the supplementary allowances as determined by the terms of the collective agreement disadvantages the vast majority of the employed members of parties to the collective agreement who work during the night as defined by the collective agreement. Factually, irregular night work is a rare exception in companies and organisations in which people work at night, whilst night shift work is the norm. The burden placed on employees bound by the collective agreement as a result of the possible violation of Art. 3(1) of the Basic Law is also not particularly severe, as the relevant terms of the collective agreement merely concern supplementary payments.

173

bb) The terms of the collective agreement at issue cause unequal treatment.

174

(1) The general guarantee of the right to equality (Art. 3(1) of the Basic Law) requires that all people be treated equally before the law. To grant one group of persons a privilege that is denied to another group constitutes an exclusion from preferential treatment that violates the right to equality and is therefore prohibited (cf. BVerfGE 131, 239 <255>; 133, 377 <407 para. 73>; 162, 277 <305 para. 68> – Childcare allowance for non-EU citizens; established case-law).

175

(2) Accordingly, the terms of the collective agreements reviewed in the initial proceedings (proceedings I.: § 5 no. 4, no. 8, § 7 no. 2.2, no. 2.3, § 8 no. 4, no. 5, no. 6, § 9 no. 1 b), d), no. 4 MTV-I; proceedings II.: § 3 III. no. 5, no. 6, § 4 no. 2, § 5 no. 1 c), no. 2 b), c), no. 3 MTV-II) create unequal treatment between workers performing irregular night work and workers performing night shift work (cf. on these terms also para. 13 ff., 34 ff. above). Together, they form the group of employees who work during night time as specifically defined in each of the collective agreements. This grouping, which forms part of the leeway to design of the parties to the collective agreement, must be taken into account when reviewing the collectively agreed terms. It follows from the collective agreements that these two groups are subject to two different sets of rules.

176

(a) In accordance with the framework collective agreement underlying the proceedings I., night shift workers receive a supplementary allowance of 25% for work performed during night time as defined by the collective agreement (§ 9 no. 1 d) MTV-I), which is not counted against other allowances which may be applicable (§ 9 no. 4 MTV-I). If they work in a three-shift-system (early, late and night shift, in any order), they are entitled to a paid 30-minute break during each shift (§ 5 no. 4 MTV-I). Shift work is organised in accordance with the operational needs of the employer and in agreement with the works council (§ 5 no. 8 third sentence MTV-I). For workers employed in shift work, the shift ends two and a half hours earlier than usual on the day preceding 1 May, without a loss of pay (§ 5 no. 8 MTV-I). As compensation for the hardships and burdens of night shift work, night shift workers who exclusively work night shifts are given four paid working days of additional time off; if they work in a two-shift system (e.g., early/late or late/night shift) they are given three paid working days of additional time off (§ 7 no. 2.2, no. 2.3 MTV-I). According to § 8 no. 6 MTV-I the night shift consists of regularly worked daily hours, which are agreed with the works council in accordance with a shift schedule. In accordance with the framework collective agreement, shift work is to be performed over five consecutive days and the employee must be notified three days in advance.

177

Irregular night workers receive a supplementary allowance of 50% in accordance with § 9 no. 1 b) MTV-I. If more than one supplementary allowance is applicable, only the highest one is paid; if two equal supplementary allowances are applicable, only one is paid (§ 9 no. 4 MTV-I). Irregular night work is work performed between the hours of 10:00 p.m. and 6:00 a.m., insofar as the work does not amount to shift work (§ 8 no. 5 MTV-I). In the implementation of additional work, night work or work on Sundays and public holidays, the private and cultural wishes of employees must largely be respected (§ 8 no. 4 MTV-I).

178

(b) In accordance with the framework collective agreement underlying the proceedings II., night shift workers receive a supplementary allowance of 25% for hours worked within the time defined by the collective agreement, namely between the hours of 10:00 p.m. and 6:00 a.m. (§ 5 no. 2 c) MTV-II), which is not counted against other allowances which may be applicable (§ 5 no. 3 b) MTV-II). If they work in a three-shift system, they receive one free shift for every 25 night shifts worked (§ 4 no. 2 MTV-II); if they work in a two-shift rotation, they receive one free shift for every 55 late shifts worked (§ 4 no. 2 MTV-II). In companies where work is performed in two or three shift systems, workers must be given a 30-minute paid break to eat during the working hours (§ 3 III. no. 6 MTV-II). Shift work is organised within the company with input from the works council (§ 3 III. No. 5 MTV-II).

179

Irregular night workers receive a supplementary allowance of 50% in accordance with § 5 no. 2 b) MTV-II. Irregular night work is work performed between the hours of 9:00 p.m. and 6:00 a.m., insofar as the work does not amount to shift work (§ 5 no. 1 lit. c) MTV-II).

180

(c) Therefore, irregular night work is compensated in particular through a higher supplementary allowance in both collective agreements, while night shifts are additionally compensated in particular through time off following a certain number of shifts and paid breaks. Regarding the question whether supplementary allowances are counted against other allowances which may be applicable, the collective agreements also create rules that differentiate between the two groups. The terms of the collective agreements thus create unequal treatment.

181

cc) However, with its review of the collective agreements, the Federal Labour Court violates Art. 9(3) of the Basic Law, because the unequal treatment of employees working night shifts and employees performing irregular night work resulting from the collectively agreed rules is not objectionable on the basis of the standard of arbitrariness, which is the applicable standard here in accordance with Art. 9(3) of the Basic Law. With its application of Art. 3(1) of the Basic Law, the Federal Labour Court fails to recognise the leeway to design of the parties to collective agreements following from Art. 9(3) of the Basic Law. While it posits a limited standard of review in the challenged decisions, it in fact conducts a detailed review. In doing so, it fails to recognise that objective reasons are ascertainable for the differentiations in the collective agreements in light of their overall concept and the specific circumstances at the time the collectively agreed rules were laid down.

182

For the rules which differentiate between irregular night work and night shift work (proceedings I.: § 5 no. 4, no. 8, § 7 no. 2.2, no. 2.3, § 8 no. 4, no. 5, no. 6, § 9 no. 1 b), d), no. 4 MTV-I; proceedings II.: § 3 III. no. 5, no. 6, § 4 no. 2, § 5 no. 1 c), no. 2 b), c), no. 3 MTV-II) there are objectively plausible reasons, including the different levels of social hardship between irregular night work and night shift work due to different levels of predictability, the increased cost of irregular night work for the employers and the consideration that employees may be motivated to perform irregular night work through a supplementary allowance. These objectives are covered by the leeway to design bestowed upon the parties to the collective agreements protected by Art. 9(3) of the Basic Law.

183

(1) For the rules that differentiate regarding supplementary allowances for night work in accordance with § 9 no. 1 b), d) MTV-I, there are sufficient objectively plausible reasons.

184

The supplementary allowances for night shift work and irregular night work especially aim to increase the cost of night work and thus serve to protect the health of workers. Night work must be regulated by the legislator to protect the objective dimension of fundamental rights, in particular the right to physical integrity under Art. 2(2) first sentence of the Basic Law (cf. BVerfGE 85, 191 <212>). In line with this obligation, the legislator created § 6(5) of the Act on Working Hours (Arbeitszeitgesetz – ArbZG), which leaves the organisational design of the compensation for work during night time primarily to the parties to a collective agreement due to their specific interest and only creates a subsidiary legislative claim (cf. BAGE 173, 205 <219 para. 45>; Federal Labour Court, Order of 17 January 2012 - 1 ABR 62/10 -, para. 15; […]). The terms of the collective agreement regarding supplementary allowances for irregular night work and night shift work that are relevant here thus take precedence, as they constitute rules which were evidently designed for and meet this purpose.

185

To what extent differentiating rules on supplementary allowances for irregular night work and night shift work are also justified by the objective reason of protection of health, because there is a lack of scientific evidence that the harm to health of workers employed in shift schedules is significantly reduced vis-à-vis those employed spontaneously or on short notice and partially extracted statistical data shows a tendency of less mental hardship in case of predictable night time work ([...]), is not relevant here. Aside from the protection of health, a plausible objective reason for the differentiating rules on supplementary allowances can be seen in the different implications of the work on workers’ social life due to the difference in predictability. As a starting point, both workers performing irregular night work and workers performing night shift work receive a supplementary allowance for the health implications of employment at night time of (at least) 25%. The additional supplementary allowance of another 25% only received by workers performing irregular night work can be justified by the additional flexibility demanded of them. In case of night shift workers, the night shifts are not only negotiated with their representative within the company, the elected works council, through the creation of a shift schedule. The shift work, which is supposed to be performed over five consecutive days, must also be announced to night shift workers at least three days in advance as provided by § 8 no. 6 third sentence, second half-sentence MTV-I. Objectively, this notification period allows for better coordination of family and free time. Insofar as the Federal Labour Court does not want to consider this argument in its review because it does not follow from the collective agreement and does not ‘considerably’ improve the position of shift workers, it wrongfully limits its examination to the purposes expressly pursued by the parties to the collective agreement and does not recognise that in the review of Art. 3(1) of the Basic Law, objectively recognisable and plausible reasons must also be taken into account. The Federal Labour Court also does not take into account that the parties to the collective agreement do not have to reach the ‘best’ or ‘most reasonable’ solution when exercising their leeway to design. The absence of any collectively agreed rules regarding a notification period for irregular night work places affected workers at a disadvantage with regard to time management; whether this disadvantage is ‘significant’ is not a decisive factor here.

186

Furthermore, the Federal Labour Court also errs in its argument that § 7 no. 2.1 and § 9 no. 4 MTV-I cannot be read in a way that indicates that the parties to the collective agreement intended to also compensate the social hardships of unplanned night work through the higher supplementary allowance for irregular night work (§ 9 no. 1 b) MTV-I). The terms of the collective agreement in § 7 no. 2.1 and § 9 no. 4 MTV-I concern a very specific situation, namely the hardships of night shifts/alternating shifts (§ 7 no. 2.1 MTV-I) and the counting against other allowances which may be applicable (§ 9 no. 4 MTV-I). The fact that irregular night work is not mentioned in § 7 MTV-I merely shows that the parties to the collective agreement wanted to regulate night shift work; there is no indication that this negates the will to compensate a lack of predictability through a higher supplementary allowance for irregular night work. The regulatory mechanism for night shift work rather indicates the opposite conclusion, namely that the parties to the collective agreement wished to compensate the social hardships, which occur to a lesser extent in case of night or alternating shifts, not only financially but also through specific free shifts. § 7 no. 2 MTV-I shows that the parties to the collective agreement had a differentiated view of the relative hardships of night shift work and alternating shift work; for the performance of work in a three-shift system, or exclusively during the night shift (§ 7 no. 2.2 MTV-I), they provided for a larger number of paid free shifts compared to the performance of work in a two-shift system (§ 7 no. 2.3 MTV-I). It appears plausible that the parties to the collective agreement intended to use these nuanced rules to also compensate that the performance of work in a three-shift system, or exclusively during the night shift, typically leads to greater social hardship.

187

Furthermore, the assumption of the Federal Labour Court that § 9 no. 4 MTV-I refutes the objective reason of ‘compensation for a lack of predictability’ through the increased supplementary allowance for irregular night work, is incorrect. § 9 no. 4 MTV-I provides that multiple allowances are counted against each other, as long as this does not affect shift work allowances or dirt and hardship allowances. It is only one rule picked from a comprehensive and fully differentiated regulatory framework for night shift work and irregular night work. To give § 9 no. 4 MTV-I a particular meaning which disregards its role within a complete and balanced system of rules is incompatible with the margin of appreciation and assessment of the parties to the collective agreement and their leeway to design.

188

Contrary to the assumption of the Federal Labour Court, § 8 no. 4 MTV-I also does not run counter to a justification of the differentiating rules of supplementary allowances for night work on the basis of the different degrees of limitation to social participation. Based thereon, the employer must largely respect the ‘private and cultural wishes of employees’ in the implementation of irregular night work. The Federal Labour Court understands the term as a restriction, imposed by the collective agreement, on employers in the exercise of their reasonable discretion in the context of their right to issue instructions. However, this interpretation is not imperative. It appears at least equally likely that § 8 no. 4 MTV-I simply calls on employers to largely respect private and cultural wishes; the right to issue instructions as provided for in § 106 first sentence of the Trade Regulation Act (Gewerbeordnung - GewO) is thus neither expanded nor limited by this merely declaratory rule (so-called false expansion of the right to issue instructions) (cf. BAGE 148, 16 <22 f. para. 29>; […]). Unlike in case of night shift work, which, in accordance with § 8 no. 6 second sentence MTV-I, is agreed upon through a shift schedule and under the participation of the collective representation within the company - the works council -, unplanned night work is generally, due to its irregularity, not planned in a proactive and continuous way that is provided for in the collective agreement. Consequently, § 8 no. 4 MTV-I simply clarifies that the interest of workers performing irregular night work must nevertheless be structurally safeguarded through the exercise of discretion when ordering irregular night work. An instruction to perform irregular night work, exercised with reasonable discretion, must nevertheless be followed by the employee even in case of conflicting interests. The wording (‘wishes’; ‘largely’) as well as the spirit and purpose of irregular night work, suggest that there is no compulsory obligation to respect private and cultural wishes. Irregular night work serves the purpose - as supported by the statements submitted - of ensuring that production processes and machine utilisation are safeguarded in emergency situations; to make the instruction to perform irregular night work completely dependent on the private or cultural wishes of employees, irrespective of operational interests, runs contrary to this purpose.

189

When considered objectively, and contrary to the assumption of the Federal Labour Court, increasing the cost of irregular night work for employers bound by the collective agreement appears to be another likely objective reason for the differentiated rules on supplementary allowances, next to the compensation of a lack of predictability. The principle that irregular night work should be avoided, if possible, does not change the fact that it can become necessary and may then - as illustrated by the lack of a notification period - cause special hardships. Therefore, it can be legitimate that the parties to the collective agreement create collectively agreed rules which provide for higher supplementary allowances for this type of night work, in order to motivate the employer to engage in proactive planning of their production processes wherever possible.

190

Furthermore, it is not possible to negate an objective of the collectively agreed rules on supplementary allowances that appears quite natural, namely to motivate employees to perform unplanned night work, from the outset. The fact that irregular night work ought to be avoided for the protection of health does not mean that an increased supplementary allowance cannot be used as motivation for the performance of the same. Especially if irregular night work is unavoidable for organisational reasons, an incentive is required for employees to agree to perform it. The fact that compensatory provisions like § 6(5) of the Act on Working Hours aim to reduce rather than expand irregular night work does not bar such purposes which run parallel to this.

191

Finally, the differentiated rules on supplementary allowances can also be considered to serve the purpose of reflecting the convergence of additional work and night work. The ability to add up these aspects generally forms part of the power to typify (Typisierungskompetenz) of the parties to the collective agreement. They are not required to integrate these two aspects into the system of the supplementary allowances which are differentiated in other cases.

192

(2) With regard to the differentiating rules on supplementary allowances in § 5 no. 2 lit. b) and c) MTV-II in the proceedings II., the same objective reasons which have been presented as possible justification for the differentiating rules on supplementary allowances in the proceedings I. also apply.

193

The differentiating rules on supplementary allowances can be justified especially through the prerogative of assessment of the parties to the collective agreement, which includes the objective of providing compensation for the implications on social life due to a lack of predictability. Here, too, the Federal Labour Court incorrectly restricts its review to such objectives as were explicitly stated in the collective agreement (see para. 165 ff. above). The Federal Labour Court did not recognise that the fact that the parties to the collective agreement did not add the words ‘regular/irregular’ to the rules on night time work in § 5 no. 2 b) MTV-II does not permit any conclusions about the predictability of the night work referenced therein. Similarly, a comparison to the rules on night shift work does not permit the inference that the rules on night work did not primarily aim to regulate irregular night work. The framework collective agreement does not describe either night shift work or night work as ‘(ir-)regular’. The fact that the parties to the collective agreement were aware of the importance of such an addition is demonstrated by different rules which make explicit reference to them (cf. § 5 no. 1 lit. e) MTV-II: ‘free day in case of regular work on Sundays’; § 4 no. 2 MTV-II: ‘the work is performed as alternating shift work if the beginning time of shifts (...) changes regularly’). The wording of § 5 no. 2 lit. b) MTV-II, ‘night work’, could also indicate that the parties to the collective agreement wanted to regulate night work which is not specifically described as ‘regular’. Furthermore, it is unclear why the parties to the collective agreement would explicitly bestow a right of co-determination on the employer and the works council in case of (night) shift work, but not in case of ‘regular’ night work, which would most likely involve greater hardships with respect to social life and especially health. As clarified by the Federal Labour Court, it is precisely the task of both the employer and the works council to plan regular working hours in a way that avoids conflicts. Additionally, night work in the form of ‘regular’ night work very rarely occurs if a collective agreement is in effect. This is because, as a rule, ‘regular’ night work would be less economical due to the higher supplementary allowance that must be paid; work that must be regularly carried out at night could easily be assigned to the ordinary night shift. When considering the collective agreement as a whole as well as regular practice in cases where a collective agreement is in effect, the objectively identifiable purpose of compensation for less predictability, at least in comparison to night shift work, can therefore be a possible justification for the higher supplementary allowance.

194

Next to the compensation of a lack of predictability, here too additional objectives such as the increased cost of irregular night work for the employer, considerations of motivation and the compensation for the additional work performed at the same time also appear to be objective reasons (see para. 185-191 above).

195

4. The challenged judgments of the Federal Labour Court also violate Art. 9(3) first sentence of the Basic Law through the legal consequences ordered in response to the assumed violation of the right to equality, with retroactive effect in both proceedings and prospective effect in the proceedings I. In such cases, the power to make the necessary correction primarily lies with the parties to the collective agreement, who may choose between different ways in which the unequal treatment can be removed (see a) below). As a result, the order of the legal consequences (‘upward adjustment’) also disregards the weight of the fundamental right in Art. 9(3) of the Basic Law of the complainants in proceedings I. 1. and II. 1. (see b) below).

196

a) The ordering of legal consequences for a violation of the right to equality through collectively agreed rules in individual proceedings concerning employment relationships bound by a collective agreement not only affects the individual parties to the proceedings but also the parties to the collective agreement (see aa) below). Whilst providing legal protection to the parties involved in the legal dispute, the courts must also recognise the leeway to design bestowed by the fundamental right in Art. 9(3) of the Basic Law, which protects the parties to the collective agreement. This protection also encompasses members of the labour coalitions, as they are subject to the collectively agreed rules, and can manifest as the primary power to choose the way in which the necessary correction is to be made (see bb) below). Whether and to what extent the parties to a collective agreement have leeway to design and therefore a primary power to choose the legal consequences of the violation of the right of equality, depends on the facts of the individual case (see cc) below).

197

aa) In cases of incidental review of collectively agreed rules, the courts must manage conflicting positions within a multipolar legal relationship. The parties to the employment contract which is subject to the collective agreement, who are parties to the individual proceedings, are both protected by the individual freedom of labour coalitions in accordance with Art. 9(3) of the Basic Law and can therefore rely on the ‘fruits of their membership’ (see para. 108, 147 above). If a member of a party to the collective agreement makes legal claims against the other party to the collective agreement due to a term of the collective agreement which does not apply to them and which they consider to be in violation of the right to equality, they primarily aim to realise their individual interest in receiving the benefit. Their interest in receiving this benefit deviates from the collective agreement and the collectively agreed distribution of the ‘fruits of membership’ agreed through the process of free collective bargaining. This necessarily results in an incidental examination of the binding rules agreed by the parties to the collective agreement as holders of fundamental rights for a large number of employment relationships bound by these collectively agreed rules. By aiming to one-sidedly extend the collectively agreed result achieved through collective bargaining of two parties to a collective agreement on an individual level, the individual proceedings between two parties involved in a legal dispute also affect the interests of other members of the associations and parties to the collective agreement in the continuity of the terms of the collective agreement as well as the leeway to design of the parties to the collective agreement to create collectively agreed rules as protected by fundamental rights (cf. para. 160 f. above). This leeway to design is not only affected by a decision that a certain collectively agreed term is invalid, but also by a decision on the legal consequences of the assumed violation. Any substantive rule leads to a judicial determination in an area which the labour coalitions wanted to regulate through free collective bargaining in an expression of their freedom to form labour coalitions ([...]).

198

bb) Irrespective of these multipolar conflicting positions, the court must directly decide on the legal consequences in the course of the individual legal dispute. The general right of access to justice, which is based on the principle of the rule of law, not only gives the parties of the individual legal dispute a claim to a comprehensive factual and legal examination of the case at hand, but also to a binding decision by the courts (cf. BVerfGE 54, 277 <291>; 107, 395 <401>; 108, 341 <347>). If collectively agreed terms created through the process of free collective bargaining violate the general guarantee of the right to equality of Art. 3(1) of the Basic Law, the labour courts cannot restrict themselves, especially in legal disputes in which a payment is sought, to the determination that such a violation has occurred ([...]). Rather, due to the binding effect of the claimants’ applications (§ 46(2) first sentence of the Labour Courts Act (Arbeitsgerichtsgesetz - ArbGG) in conjunction with § 308(1) first sentence of the Code of Civil Procedure (Zivilprozessordnung - ZPO)), they must decide directly on the applications made. Furthermore, it is not possible to initiate a review of the terms of the collective agreement at issue prior to the decision on the legal consequences by way of a referral from a court in accordance with Art. 100(1) first sentence of the Basic Law (cf. on the laying down of rules in a collective agreement by the state regarding the bylaws of pension funds of the Federation and the Länder, Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 174, 127 <175 para. 140>; […]).

199

In the determination of the legal consequences of terms of a collective agreement which violate the right to equality, the courts must nevertheless consider the freedom of the parties to the collective agreement to form labour coalitions and especially their leeway to design both in practical and legal terms (in terms of the outcome see Federal Labour Court, Judgment of 23 August 2023 - 10 AZR 384/20 -, para. 19; established case-law; on the laying down of rules in a collective agreement by the state regarding the bylaws of pension funds of the Federation and the Länder BGHZ 174, 127 <178 f. para. 149 f.>; […]). When parties to a collective agreement have made use of their power to regulate working and economic conditions by concluding a collective agreement, which is protected by fundamental rights, this constitutionally guaranteed leeway for laying down collectively agreed rules (see para. 160 f. above) continues if there are different options of remedying the unequal treatment found; the parties then in principle have the primary power to remedy such unequal treatment. When determining the legal consequences on the individual level, the required partial reorganisation of the employment and economic relationships in cases where collectively agreed rules are found to be incompatible with the Constitution must first and foremost be left to the contracting parties as the initial creators of the existing rules (cf. on the laying down of rules in a collective agreement by the state regarding the bylaws of pension funds of the Federation and the Länder BGHZ 174, 127 <178 f. para. 149 f.>). It is only in this way that the legitimate basis of the collective agreement, namely its specific process of formation through procedures protected from state influence, as well as the consequences for those bound by the collective agreement that generally fall within its scope of application, are observed. The collective agreement agreed between the parties during negotiations on an equal playing field is a ‘compromise’, subject to what was financially possible at the time of the negotiation, which is legitimised by the free decision of the members of the parties to the collective agreement to join a labour coalition (cf. Federal Labour Court, Judgment of 15 November 2023 - 10 AZR 163/23 -, para. 18 with further references; established case-law; […]). It encompasses practical economic and social considerations which prevailed in the practice of collective bargaining at the time the agreement was concluded. It presents the members of the associations with a framework for remuneration that is acceptable to both parties to the collective agreement at the time of the negotiation and thus results in staffing and economic plans in accordance with that situation ([...]). The parties to the individual employment contract, who are also bound by the collective agreement, can not only claim the ‘fruits of their membership’ with regard to the collectively agreed terms. They can also participate in the process of correction of collectively agreed terms which are found to be in violation of fundamental rights conducted by the parties to the collective agreement.

200

Insofar as the rule that the parties intended to lay down is not clear from the collective agreement itself and the parties have different options of remedying the violation of the right to equality, they must at least be given the chance to remedy this violation through collective bargaining. In such cases, the courts may therefore not directly order a new set of rules for bringing about the required equal treatment that is legally binding in the individual case and de facto has an indirect binding effect on similar cases. In individual legal disputes involving remuneration rules contrary to the right to equality, the courts may only provide for ‘upward adjustment’ – meaning the extension of the favourable rule to the disadvantaged group – if the discretion of the parties regarding whether and how to exercise their specific leeway to remedy the violation of the right to equality is reduced to one single option – granting the more favourable treatment to both groups (cf. also BAGE 50, 137 <146>; […]). In such cases, the courts’ competence for secondary correction only implements the specific rules the parties to the collective agreement have to lay down anyway.

201

cc) Whether the parties to the collective agreement have leeway to design in the correction of the unequal treatment, resulting in an obligation to observe the primary power to remedy the violation, is to be determined for each individual case. In this regard, in substantive terms, the legal framework created by the collective agreement (see (1) below) and in terms of timing, a potential protection of legitimate expectations of those subject to the collective agreement, who are protected by Art. 9(3) of the Basic Law (see (2) below) must especially be observed.

202

(1) In substantive terms, a violation of the right to equality caused by the collectively agreed terms can often be remedied in a number of different ways.

203

A substantive leeway to design commonly exists where a term in the collective agreement explicitly exempts one group of employees from the scope of application and it is this term alone which creates the point of reference to establish the unequal treatment. In such cases, the parties to the collective agreement may choose to remedy the violation of the right to equality either by extending the substantive scope of application to the currently exempted group, by no longer applying the provision to both the beneficiaries and the exempted group of people, or by introducing an entirely new rule (cf. on the laying down of rules in a collective agreement by the state regarding the bylaws of pension funds of the Federation and the Länder BVerfGE 124, 199 <234 f.>).

204

As a rule, leeway to design also exists if the unconstitutional unequal treatment of different groups of people derives from the inequality inherent in two regulatory frameworks, established through an overall assessment of the collective situation. In this regard, the point of reference giving rise to the voidness are the regulatory frameworks in their concrete form ([…]). In this regard, any collectively agreed term that has an apparent connection to the term that is the direct subject of the legal dispute and likewise contributes to the different rules applicable to the situation which connects the affected groups can result in a violation of equality. It is not necessary that each of the included terms itself make a ‘specific’ rule in the sense of a conclusive rule that is directed towards the differences between different groups of people. Rather, it is sufficient that the disadvantaged group may be impacted by these rules, meaning that their position changes with regard to the situation that connects the affected groups. In such cases of unequal treatment caused by the intersection of different regulatory frameworks, the parties to the collective agreement can generally choose from a number of options to remedy the situation. In particular, they can abolish the regulatory frameworks generally, they can newly regulate each framework separately, they can extend the substantive scope of the existing frameworks or they can alter the way in which the different frameworks interact.

205

(2) In terms of timing, legitimate expectations may exist that could affect the scope of the leeway to design. In this regard, the legal consequences for the past and for the future must be distinguished. Whilst the scope of the leeway to design regarding a new rule for the future is not generally limited by the protection of legitimate expectations of those subject to the collective agreement (see (a) below), it is of greater importance in case of a new rule for the past (see (b) below).

206

(a) In the creation of a new rule with effect for the future, after a violation of Art. 3(1) of the Basic Law has been determined by the courts, the leeway to design of the parties to the collective agreement in remedying the violation of the right to equality is generally not restricted by the protection of legitimate expectations. Furthermore, there are generally no other purposes which restrict the leeway to design in case of a violation of the general guarantee of the right to equality.

207

It is inherent in the nature of collectively agreed terms that they are subject to retroactive amendment through the collective agreement (cf. Federal Constitutional Court, Order of the Third Chamber of the First Senate of 20 February 2020 - 1 BvR 2071/18 -, para. 9; Federal Labour Court, Judgment of 25 January 2024 - 6 AZR 119/23 -, para. 34 with further references). These changes can generally also be disadvantageous to those subject to the collective agreement, including dependent employees (cf. Federal Labour Court, Judgments of 25 January 2024 - 6 AZR 119/23 -, para. 34 with further references and of 30 November 2022 - 5 AZR 27/22 -, para. 44; […]). In any case, collectively agreed terms are not subject to a greater level of protection of legitimate expectations than the continued validity of legislation. The mere general expectation that the law as it is currently in effect will not change in the future is, as a rule, not protected by the Constitution (cf. BVerfGE 127, 1 <17>; 131, 20 <39 f.>; 132, 302 <319 para. 45>; 148, 217 <256 para. 138>; 157, 177 <201 para. 53> – Advance payments on ground rents; 165, 103 <139 para. 103> – Surplus profit transfers resulting from events prior to tax consolidation). In cases where an issue was previously explicitly regulated, there is usually a political and societal expectation on the parties to the collective agreement regarding the way in which a necessary correction is implemented, as well as corresponding pressure exerted by the other party to the collective agreement. However, such pressure is inherent in collective bargaining policy disputes. It creates neither a constitutionally relevant expectation, nor does it restrict the freedom of collective bargaining of the parties to the collective agreement in any other way. Apart from those rare cases in which regulation is legally required, they are generally free to refrain from continuing to regulate aspects which were previously explicitly regulated or to place them on a new regulatory footing in light of societal or economic developments. With regard to the future, it is only in highly exceptional cases that the protection of legitimate expectations limits the leeway to design of parties to the collective agreement in such a way that there is only one lawful decision ([...]).

208

Furthermore, a restriction of the leeway to design which could legitimise the order of direct legal consequences by the courts also does not follow from other requirements, such as the sanctioning or prevention of violations of fundamental rights. The case at hand only concerns the general guarantee of the right to equality. Apart from the obligation to remedy the violation of fundamental rights, this guarantee does not require specific legal consequences with a deterrent or preventative effect ([…]).

209

In light of the leeway of the parties to a collective agreement to design future arrangements, the courts generally cannot remedy collectively agreed rules that violate the right to equality through an ‘upward adjustment’ for the future, but rather only for the past ([…]).

210

(b) But even when it comes to new rules in a collective agreement that apply to the past – i.e., the time before a court found a violation of the right to equality – the parties to a collective agreement are, in principle, afforded leeway to design (see (aa) below). However, this leeway can be limited, in particular, by the protection of legitimate expectations of those subject to the collective agreement (see (bb) below).

211

(aa) Due to their regulatory power protected by fundamental rights, the parties to the collective agreement are generally also entitled to amend collectively agreed terms with retroactive effect (cf. most recently BAGE 169, 163 <179 para. 35>; […]). As a private regulator, they are entitled to provide that a collective agreement will enter into force at a point in time that is already in the past or to change the content of existing collectively agreed terms ([...]). The foundation of the binding force of the collective agreement is the free decision of the members of labour coalitions to join these coalitions, which does not preclude a retroactive amendment of collectively agreed terms. Such a preclusion considerably limits the leeway to design of the parties to the collective agreement guaranteed by Art. 9(3) of the Basic Law and the opportunity to achieve an overall positive result for members of the labour coalitions. This would impede their ability to promote and preserve working and economic conditions. Just because labour coalitions usually exercise their freedom with the goal to preserve or improve the economic position of employees bound by the collective agreement, who are coalition members, it cannot be ruled out that, in the interest of preserving jobs or securing company locations, they may choose to limit it by reducing existing entitlements (cf. BAGE 78, 309-333). Such a retroactive limitation is also not precluded from the outset by the fact that the entitlements bestowed by the collectively agreed terms may not only have already come into existence, but may also have already been processed (cf. Federal Labour Court, Judgment of 5 July 2006 - 4 AZR 381/05 -, para. 76; still left unresolved by BAGE 78, 309 <332>; [...]). Fundamentally, this power to retroactively regulate collectively agreed terms in cases where a remuneration structure is found to be in violation of the fundamental right to equality, aside from an ‘upward adjustment’, also includes the possibility to harmonise the supplementary allowances (perhaps combined with collective obligations of repayment [...]) or a provision which differentiates according to duration and situation ([...]). In cases where the purposes of the unequal treatment are disputed, it is also possible to issue a declaration clarifying the purposes pursued by way of a supplement to the collective agreement. By rooting within it the objectives already pursued with the conclusion of the collective agreement, this erodes the foundation of the alleged violation of the right to equality. Because this does not necessarily require new substantive regulation (cf. on this Federal Labour Court, Judgments of 27 February 2018 - 9 AZR 430/17 -, para. 19 and of 15 November 2016 - 9 AZR 81/16 -, para. 25), this generally does not give rise to a retroactivity problem ([…]).

212

In any case, the parties to the collective agreement, who are protected by Art. 9(3) of the Basic Law, have the power to retroactively make changes if they are making use of their primary power to ensure equal treatment in case of violations of Art. 3(1) of the Basic Law.

213

In light of the leeway to design connected to the retroactive regulatory power, it need not be decided here whether, in case of a violation of Art. 3(1) of the Basic Law, the parties to the collective agreement are obligated to retroactively create a specific new rule for collectively agreed terms that violate the right to equality for the duration of the collective agreement. Art. 3(1) of the Basic Law generally requires the creation of a legal situation that is compatible with the Constitution for the past as well. It must however be considered that collective agreements generally represent an extensive compromise through which the parties to the collective agreement organise their employment and economic relationships, which is influenced by the economic and social considerations resulting from the specific negotiation position at the time of conclusion of the agreement. These in turn affect the framework for remuneration that is acceptable to both parties and leads to staffing and economic plans in accordance with that situation ([…]). These consequences are also of great importance for the continued membership of existing members and for new members joining the associations. A general obligation of the parties to the collective agreement to create a new, retroactive rule dating back to the point in time in which the collective agreement was concluded, would undermine the nature of the collective agreement as a situational compromise. It would bring disorder to the framework of remuneration which is linked to the agreement as a whole and, by expanding the financial framework, would reduce the incentive for the parties to the collective agreement to ‘fight for a fair price’ from the start ([...]). An expansion of the framework for remuneration and costs thus conflicts with the leeway to design of the parties to the collective agreement ([...]).

214

When comparing this to the situation of the legislator, it becomes apparent that the leeway to design generally associated with the power to regulate retroactively continues to apply even in cases which involve the remedying of a violation of the right to equality (cf. on this already para. 160, 166 above). If the incompatibility of a statutory provision with Art. 3(1) of the Basic Law has been determined, the legislator is generally required to retroactively, back to the point in time referenced in the courts’ determination, amend the legal framework in a way that is compatible with the Constitution (cf. BVerfGE 73, 40 <101>; 105, 73 <134>; 130, 263 <312 f.>; 131, 239 <265>; 166, 196 <288 para. 244 f.> – Prisoner remuneration II). However, exceptions to this rule exist even for the legislator, for example, in the interest of financial and budgetary stability, with regard to provisions relevant for the budget (cf. BVerfGE 93, 121 <148>; 105, 73 <134>; 117, 1 <70>; 125, 175 <258>; 131, 239 <265>; 166, 196 <288 para. 244 f.>), or in cases in which the legal situation under constitutional law was not sufficiently clear before and the legislator must therefore be given a reasonable amount of time to create a new legal framework (cf. BVerfGE 125, 175 <258>). In light of the freedom of collective bargaining protected by Art. 9(3) of the Basic Law, the parties to a collective agreement cannot be held to a higher standard than the legislator in this regard.

215

A comprehensive obligation of the parties to the collective agreement to retroactively regulate in case of a determination that a collectively agreed term violates the right to equality would already be barred by the exclusion clauses regularly agreed within collective agreements; a particularity of collective bargaining (see on this para. 229 below).

216

(bb) The leeway to design generally given to parties to the collective agreement regarding the remedy for a violation of the right to equality through retroactive regulation may however be limited by the protection of legitimate expectations.

217

Especially in the case of remuneration rules which violate the general guarantee of the right to equality, payments to the group benefitted by the rule have usually already been made without reservation. In contrast to a rule for the future, a framework to ensure equal treatment therefore cannot take the form of completely refraining from regulating the matter for all affected groups with comprehensive effect for the past. It may be necessary to consider both that employees have trusted that they will be able to keep the payments received, and that employers have placed trust in the stability of the renumeration framework of the collective agreement.

218

(α) In the creation of collectively agreed rules with retroactive effect, the parties to the collective agreement, who are partially bound by fundamental rights, may not be directly obligated by Art. 20(3) of the Basic Law ([…]; contra BAGE 115, 304 <314 para. 37>). When creating rules with retroactive effect by way of free collective bargaining, however, they must observe standards similar to those that must be observed by the legislator (to the same effect Federal Labour Court, Judgment of 20 March 2024 - 5 AZR 161/23 -, para. 32 with further references; […]) and must take into consideration the underlying legal doctrine of the prohibition of retroactivity for laws, the protection of legitimate expectations and the requirement of legal certainty ([…]). If the parties to a collective agreement agree on terms which would, had they been created by the legislator, fulfil the prerequisites of real retroactivity, the legitimate expectations of those affected generally merit protection.

219

(β) However, unlike in the relationship between the state and citizens, the protection of legitimate expectations works both ways for rules in collective agreements, which means that the legitimate expectations of both sides bound by a collective agreement must be protected. Thus, the protection of legitimate expectations does not prescribe a specific rule in cases where it can be invoked by both employers and employees bound by a collective agreement ([…]). Both parties to an employment contract who are bound by the collective agreement can invoke the validity and continued existence of the collectively agreed rules, insofar as they did not have to expect that they would change ([...]). It must be determined on a case-by-case basis whether the legitimate expectation of one side outweighs the legitimate expectation of the other.

220

b) The challenged judgments do not sufficiently take into account the parties’ primary power to remedy the violation. They cannot be based on the collective will of the parties to the collective agreement (see aa) below), they fail to recognise the underlying concept of the terms of the collective agreement and how the leeway to design contained therein permits correction (see bb) below) and, in a way that is objectionable under constitutional law, make an ‘upward adjustment’, despite there being no indication in the proceedings that the parties intended to restrict their leeway to design inherent in the concept of collective bargaining to such a measure, either for the future or for the past (see cc) below). The Federal Labour Court was therefore not permitted to grant relief based on such a legal consequence, be it in the form of a claim to payment or a determination to that effect (see dd) below).

221

aa) The legal consequence of ‘upward adjustment’ could not be based on the will of the parties to either of the collective agreements at issue here. The statements submitted concur that irregular night work, for which higher supplementary allowances are paid, is a rare exception in the companies bound by the collective agreements, while night shift work is common. Irregular night work is resorted to only on very rare occasions - the data submitted varies, based on a general assessment, between 0.2% and 2.56% of cases. This ratio between the different forms of employment – irregular night work and night shift work – is well-known, according to the submitted statements, and the negotiating parties were likely aware of it when they concluded the collective agreements and laid down the differentiated rules. Taking into account the actual employment structure and the considerable increase in pay that would result from such a decision, it is not evident that the parties, had they known that the rules on supplementary allowances for night shift work were contrary to the right to equality, would have agreed on an across-the-board supplementary allowance of 50% for all employees working at night in addition to the other rules.

222

bb) Furthermore, in their overall assessment, the challenged court decisions do not sufficiently reflect the underlying concept of the collective agreements. The presumption that the right to equality has been violated is derived from the comparison of two different systems –night shift work and irregular night work – for which differentiated rules are provided in the collective agreements, which include, but are not limited to, mere supplementary allowances. Whether the terms laid down for night shift work with regard to entitlement to time off for a certain number of shifts worked amount to ’specific’ compensatory provisions for night shift work and therefore form part of the legal framework of night shift work, is irrelevant in this regard. It is sufficient that the provisions on entitlement to time off for a certain number of shifts worked can objectively contribute to the compensation of the hardships incurred due to working at night. In solely referring to ‘rules on supplementary allowances’ when determining the legal consequences in the challenged decisions, the Federal Labour Court not only fails to recognise the underlying concepts of the collective agreements and the right to choose how to regulate night work that is afforded to the parties to the collective agreements, but also creates the risk of preferential treatment of those workers who work night shifts that is incompatible with the underlying will of the parties to the collective agreements.

223

cc) The legal consequences ordered by the Federal Labour Court violate the freedom of labour coalitions of the complainants in proceedings I. 1. and II. 1. because the parties’ leeway to design has not been reduced to ‘upward adjustment’ as the only viable legal consequence.

224

(1) Insofar as the Federal Labour Court granted the application for a declaratory judgment in the challenged judgment of 9 December 2020, the challenged decision disregards the freedom to design the remedy of the violation through collective bargaining as protected by Art. 9(3) first sentence of the Basic Law. The parties to the collective agreement are not bound to retain the challenged rules on supplementary allowances with regard to night shift work or irregular night work for the future (see para. 206 ff. above). It is not ascertainable that there are special aspects relating to the need for protection of those subject to the collective agreements to maintain the current terms of the collective agreement for the future that could justify, by way of exception, setting aside the leeway generally afforded to the parties for the future. The constitutionally required protection of health is already addressed by § 6(5) of the Act on Working Hours. It is irrelevant in this regard whether the parties to the collective agreement would have, with certainty, reached the solution that is most suited to remedying the alleged violation of the right to equality. It is not the task of the courts to assess the willingness and the competence of the parties to the collective agreement to negotiate in their area of expertise.

225

(2) Finally, the Federal Labour Court also violates Art. 9(3) first sentence of the Basic Law insofar as it assumes that an ‘upward adjustment’ with retroactive effect is necessary as the legal consequence in both decisions. The preconditions which could create an obligation for the parties to the collective agreement to impose an ‘upward adjustment’ through the payment of a supplementary allowance of 50% for the past are not met (see (a) below). Such an obligation especially does not result from the protection of legitimate expectations (see (b) below).

226

(a) Assuming that the collectively agreed rules violate the right to equality, the parties to the collective agreements had leeway to design regarding the time before the courts found a violation of the right to equality. Even based on the strict standards imposed on the legislator with regard to retroactive rules, a general ‘upward adjustment’ was not compulsory. This is because the question if and to what extent the parties to a collective agreement are bound by Art. 3(1) of the Basic Law when concluding a collective agreement, had at the time not yet been determined under constitutional law. The general retroactive removal of an alleged violation of the right to equality through the upward adjustment of the rules on supplementary allowances considerably expanded the funds needed with regard to ‘night work’ with direct effect for those subject to the collectively agreed rules, because irregular night work, for which a higher supplementary allowance was paid, had previously only been ordered under exceptional circumstances (cf. para. 221 above).

227

With regard to the past, too, several options were available to the parties to the collective agreement for remedying the assumed violation of the right to equality for a large number of employment relationships bound by the collective agreements (cf., for example, para 211 above). They would also have been free to declare, by way of a supplement to the collective agreement, that the higher supplementary allowance for irregular night work serves to compensate for the lack of predictability of work schedules (cf. para 211). Whether and under which circumstances it would have been permissible to refrain from a retroactive correction (as already discussed at para. 211 above), does not have to be decided here.

228

(b) Furthermore, the legal consequences of ‘upward adjustment’ ordered through the decisions challenged here, in the form of a supplementary allowance for night shift work in the amount of 50% with retroactive effect, was not required for the protection of legitimate expectations. In this regard, it does not have to be decided whether the need to protect legitimate expectations and the consequent actions of the other parties to the collective agreement is affirmed or rejected in light of the decision of the Federal Labour Court of 21 March 2018 (BAGE 162, 230) ([...]). In any case, in the absence of special circumstances, the protection of legitimate expectations would apply to both the employees and the employers subject to the collective agreement in equal measure. Consequently, it cannot give rise to the obligation of an ‘upward adjustment’.

229

The exclusion clauses contained in the framework collective agreements do not change this. Collective agreements typically contain exclusion clauses. They reflect the need for a shortening of limitation periods in case of contracts used for a large number of individual cases, with the intention to facilitate a quick determination of claims and the removal of contested issues, which is of particular importance in the context of employment (cf. BAGE 154, 252 <262 f. para. 37>; Federal Labour Court, Judgment of 18 February 2016 - 6 AZR 628/14 -, para. 16; […]). Such agreed terms are protected by Art. 9(3) of the Basic Law. They are an expression of free self-limitation and, in principle, are unobjectionable under constitutional law (cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts - BVerfGK 4, 137 <141>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 1 December 2010 - 1 BvR 1682/07 -, para. 24). The fact that potential repayment claims at the individual level may be barred by the exclusion clauses contained within the collective agreement cannot be used as an argument for the obligation of the parties to the collective agreement to agree to specific terms with regard to night shift work. The exclusion clause also applies equally to both parties to the collective agreement. The fact that repayment claims are barred to the benefit of individual beneficiaries by the exclusion clause agreed through free collective bargaining is mirrored by the fact that payment claims of employees who would potentially benefit are also barred if they are not raised in time. It is primarily up to the parties to the collective agreement to make use of their expertise and leeway to design to find a solution regarding the potential unwinding of claims between the parties to the collective agreement, perhaps through limited ‘rules of repair', collectively agreed obligations regarding restitution or the modification of exclusion clauses.

230

dd) In light of this, there was no basis for the Federal Labour Court in the challenged decisions to circumvent the leeway of the parties to the collective agreements protected by Art. 9(3) of the Basic Law, including that of the complainants in proceedings I. 1. and II. 1. by ordering ‘upward adjustment’. Even in case of a violation of the right to equality, the parties to the collective agreements should first have been given the opportunity of reconciling the conflicting positions through free collective negotiations. In this respect, procedural law provides for sufficient possibilities ([...]).

III.

231

The fundamental right contained in Art. 12(1) of the Basic Law, a violation of which was claimed by the constitutional complaint II. 1., does not provide further-reaching protection than that already provided by Art. 9(3) first sentence of the Basic Law. As the constitutional complaints are already successful due to the violation of Art. 9(3) first sentence of the Basic Law caused by the challenged decisions, it does not have to be decided whether the challenged judgments of the Federal Labour Court also violate the fundamental rights guaranteed by Art. 2(1) in conjunction with Art. 20(3) of the Basic Law or, in the context of the proceedings II., by Art. 12(1) and Art. 3(1) of the Basic Law.

D.

232

The judgments of the Federal Labour Court are reversed on the grounds of a violation of Art. 9(3) first sentence of the Basic Law. The matter is remanded to the Federal Labour Court pursuant to § 95(2) of the Federal Constitutional Court Act (cf. BVerfGE 124, 199 <235>).

E.

233

[…]

F.

234

This decision was taken with 7 : 1 votes as regards the reasons.