According to Section 1a AEntG, a general contractor who commissions a subcontractor to provide construction services is liable for the minimum wage claims of the employees employed by the subcontractor in the same way as a guarantor who has waived the defense of advance action. According to a judgment of the Fifth Senate of January 12, 2005 (- 5 AZR 617/01 -) this regulation is constitutional. The guarantor’s liability regulated in Section 1a AEntG falls within the scope of protection of Article 12 Paragraph. 1GG a. However, this impairment is justified by reasons of public interest. Section 1 a AEntG serves the effective enforcement of Section 1 AEntG. The building contractor’s no-fault guarantor liability is intended to encourage him to pay greater attention to ensuring that his subcontractors comply with and actually fulfill the mandatory working conditions under the AEntG – in particular the mandatory minimum wages. The interference with Article 12 Para. 1 GG still corresponds to the principle of proportionality. The guarantor liability regulated in Section 1a AEntG is suitable for achieving the legal objectives. According to the legislature’s unobjectionable opinion, no other equally effective means that has a less restrictive effect is available. According to this, strengthening and expanding construction site inspections by the trade inspectorate is not suitable for achieving the legislative goals in the same way as no-fault net wage liability. The interference with Article 12 para. caused by the guarantor’s liability. 1 GG is still proportionate to the purpose pursued by this regulation. A constitutional restriction of the scope of the guarantor’s liability to reasonable detection and defense measures is not necessary. Following the judgment of the Court of Justice of the European Communities, which was made on the basis of an order for reference by the Fifth Senate in these proceedings, the Senate decided that the surety’s liability stipulated in Section 1a of the AEntG is compatible with the freedom to provide services guaranteed by Article 49 EC. The Senate further decided that according to Section 1 Para. 1 AEntG, the minimum wage to be paid by the employer is owed exclusively for work actually performed, because the legal norms of the collective agreement that was declared generally binding on the regulation of a minimum wage in the construction industry in the Federal Republic of Germany of May 26, 1999 are only internationally mandatory in the sense of of Art. 34 EGBGB. Liability according to § 1 a AEntG does not cover claims arising from delay in acceptance or claims against the employer for default interest due to late payment of wages. If an employee previously employed by the stationing forces receives bridging aid in accordance with § 4 Ziff. 1 letter b of the collective agreement of August 31, 1971 on the social security of employees in the stationed forces in the territory of the Federal Republic of Germany (TV SozSich), § 4 para. 3 letter b TV SozSich determines the assessment basis after deducting the fictitious wage tax and social security contributions. In its judgment of March 10, 2005 (- 6 AZR 119 317/01 -) the Sixth Senate decided that taking into account the fictitious German wage tax can have a detrimental effect on the situation of cross-border commuters. Persons who are resident and subject to tax in another member state of the European Communities may be disadvantaged compared to employees who are resident in Germany and are subject to tax there. According to the provisions of the judgment of the European Court of Justice, which was made on the basis of the reference order of the Sixth Senate in this procedure, Article 39 EC and Article 7 Para. 4 of Council Regulation (EEC) No. 1612/68 of October 15, 1968 opposes such a disadvantageous tariff regulation. These regulations require that when determining the assessment basis of the bridging aid in the case of Section 4 No. 1 letter b TV SozFor a former employee resident in France, it is not the fictitious German wage tax that must be taken into account, but rather the fictitious wage/income tax payable in France.
During the reporting period, the Eighth Senate had to decide on the following constellation of an employee being sent abroad: The employee was initially employed by the employer in Germany. Based on a secondment agreement concluded between the parties, he worked for the employer in Libya for a limited period of four years. In its judgment of July 14, 2005 (- 8 AZR 392/04 -), the Eighth Senate decided that the posting contract was a further, second employment contract between the parties and that they suspended the previous employment contract for the duration of the posting have. This results in the interpretation of the agreement concluded by the parties. This interpretation does not contradict the fact that the main purpose of the posting agreement is to ensure that the employee receives German social security. For this purpose, according to § 4 Abs. 1 SGB IV only requires that employment abroad must be contractually limited in advance. How this requirement is to be implemented is regulated in Section 4 Paragraph. 1 SGB IV does not. If the parties agree that an employment relationship in Germany will be suspended for the duration of a fixed-term employment relationship with the same employer for posting abroad, the rights and obligations from the original employment relationship will be revived after the deadline has expired. If this employment relationship was assigned to a part of the business that has since been transferred to a business purchaser, the business purchaser is the sole employer after the foreign employment relationship expires. The Eighth Senate further decided that the limitation of the foreign employment relationship is effective if it serves to guarantee the employee a secure opportunity to return and the German social security in accordance with. § 4 SGB IV. What was relevant in this respect was the legal situation before the Part-Time and Fixed-Term Work Act came into force, according to which the fixed-term nature of an employment contract required justification if the fixed-term period deprived the employee of the statutory protection against dismissal to which he or she would otherwise be entitled.