In accordance with § 23 AGG, anti-discrimination organisations may represent the interests of a disadvantaged party by assisting and supporting the plaintiff in judicial proceedings. To this end, § 23 authorises legal counseling inside and outside of court. However, assistance in this regard does not go beyond accompanying the client during the hearing. In light of the specific weaknesses of the anti-discrimination laws in practice, it is imperative that the inclusion of anti-discrimination organizations becomes stronger and more frequent.

The AGG, therefore, should be supplemented with a right of the anti-discrimination organisations to litigate for the right of a discriminated person in their own name (Prozessstandchaft) and also with a collective action right carried out by anti-discrimination organisations.

A “Prozessstandschaft” means that anti-discrimination organisations have the opportunity to assert the rights of the discriminated person in their own name. By doing this, the organisation would be the plaintiff and could lodge pleas, make requests in court, and question witnesses. The risks involved in litigation are thus assumed by the organisation representing the plaintiff. Of course, a prerequisite for this representation in court is that the affected person agrees to the assertion of the rights by a third party. Under the AGG, this option is not yet possible, but it is already established under the Disability Equality Act, the Consumer Protection Act, and the Environmental Protection Act.

Further information on this topic (in German) can be found here.

The introduction of a collective action right would make it possible to have a breach of the prohibition of discrimination assessed by the court, regardless of individually discriminated against persons. In the case of a collective action right, the organisations itself can bring forth the claim. Since in principle, only those who have their rights personally affected may bring an action before the courts, the collective action in and of itself constitutes an exception to this. Therefore, they are only permitted in areas where there is an explicit legal basis to do so. In Germany, there already exists a collective action right in the area of discrimination based on a disability. It would be worthwhile to secure this possibility for representation in the AGG as well. To ensure that there is no legal interference in the legal relationships of third parties, the collective action right should be limited to cases of public interest (as in the cases of the Disability Equality Act, the Consumer Protection Act, and the Environmental Protection Act).

See the discussion in the Feryn case before the European Court of Justice.