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In harmony with jurisprudence set by the European Court of Justice on November 6th 2008, the Federal Labour Court clarified in its decision from September 16th 2008(in German) that the prohibition of discrimination under the AGG by way of interpreting the term “social illegality” (Sozialwidrigkeit) (§ 1 Kündigungsschutzgesetz – Employment Protection Act) should also be considered during terminations and may lead to their inadmissibility. The Court has thus taken into account the fact that the EU provisions do not allow dismissals to be excluded from discrimination protection, as § 2 (4) AGG indicates.

The EU Directive 2000/78/EC from November 27th 2000 establishes a general framework for equal treatment in employment, and provides in its Article 3 (1) lit. c that the conditions for dismissal shall not be discriminatory or disadvantageous. As such, the EU-guidelines do not allow dismissals to be excluded from discrimination protection.

For this reason, the regulation under § 2 (4) AGG – that only the provisions on general and special protection from dismissal are applicable to dismissals – must therefore be deleted without replacement.