Inequality in collective agreements – on the Federal Constitutional Court's "decision of the century"

On 24 October 2025, a symposium on the equality review of collective agreements was held at the University of Bayreuth. The event was organised by the President of the Federal Labour Court, Inken Gallner, and Professor Dr Adam Sagan, MJur (Oxon), holder of the Chair of Civil Law, European and German Labour Law at the University of Bayreuth. The focus was on the decision of the Federal Constitutional Court of 11 December 2024, which for the first time affirmed that the parties to collective agreements are directly bound by the general principle of equality (Art. 3(1) of the German Basic Law). 

The discussion focused in particular on the scope of equality law controls, the primary corrective powers of the parties to collective agreements, and the consequences for EU law, which has so far only recognised "upward adjustment" in cases of discrimination. Adam Sagan welcomed a total of around 70 participants to the event, including representatives from academia, trade unions, employers' associations and the legal profession. There was particularly strong interest from the labour courts. Five senates of the Federal Labour Court and the presidents of four regional labour courts were represented. 

Professor Dr Martin Eifert, LL.M. (Berkeley), judge at the Federal Constitutional Court and rapporteur for the decision in question, kicked off the proceedings. In a clearly structured presentation, he explained how the complex labour law "quadrangle" of employer, employee, employers' association and trade union results in a direct obligation on the parties to collective agreements to comply with the principle of equality. 

Professor Dr Dres. h.c. Monika Schlachter (University of Trier, IAAEU) then discussed the European law dimension of the issue. She made it clear that under EU law, Member States, including national courts, as well as all other standard-setters and therefore also the parties to collective agreements, are obliged to treat everyone equally. The primary power of the parties to collective agreements to correct unequal treatment in a collective agreement has no equivalent in the case law of the European Court of Justice.

Professor Dr Stefan Greiner (University of Bonn) provided a systematic classification. He explained that collective bargaining autonomy derives partly from state delegation and partly from membership in associations. 

Only on the basis of such a combination can the direct binding nature of fundamental rights on the parties to collective agreements be explained in a comprehensible manner. Professor Daniel Ulber (University of Trier, IAAEU) highlighted the practical problems arising from the primary corrective power at the level of German law. In his opinion, only the Federal Labour Court should grant the parties to collective agreements the possibility of correcting collective bargaining standards that violate equality. A peace obligation no longer arises from the collective agreement to be corrected. 

The concluding discussion between Roland Wolf (BDA) and Dr Grégory Garloff (NGG) was moderated by Dr Katja Gelinsky, LL.M. (Frankfurter Allgemeine Zeitung). The discussion made it clear that the practical implementation of the ruling from Karlsruhe poses considerable challenges for the social partners. Further challenges for collective bargaining autonomy arise from the EU Pay Transparency Directive, which is to be implemented next year. In her closing remarks, Inken Gallner recalled the economic and political crises of recent years. She said that the rule of law and democracy are under threat both in the European Union and in Germany. She joined Ruprecht Polenz in appealing: "Do something!"