A time limit that has only been agreed verbally is in accordance with Section 14 Para. 4 TzBfG, § 125 sentence 1 BGB is void, so that a permanent employment relationship arises at the start of the contract according to § 16 sentence 1 TzBfG. The later written down of the time limit, which was initially only agreed verbally, does not mean that the initially formally void time limit becomes retroactively effective.
If, in the contractual negotiations between the parties, the employer expressly made the conclusion of the fixed-term employment contract subject to the conclusion of a written contract or announced to the employee that the agreed agreement would be recorded in writing, this declaration is valid without the addition of exceptional circumstances according to the relevant recipient horizon (§§ 133, 157 BGB) to be understood as meaning that the employer is subject to Section 14 Para. 4 TzBfG wants to comply with the written form requirement and his declaration aimed at concluding the contract only in one of the forms of § 126 para. 2 BGB can be accepted if the contract document(s) are signed.
According to the ruling of the Seventh Senate of April 16, 2008 (7 AZR 1048/06), this applies equally if the employer sends the employee a contract form that he has already signed without prior agreement and asks him to sign it. In these cases too, the employer makes it sufficiently clear that the contract can only be concluded if the written form requirement of Section 14 Para. 4 TzBfG should come about. In these and other cases in which the conclusion of the fixed-term employment contract is dependent on compliance with the written form requirement according to the circumstances of the contract, the employee cannot implicitly accept a written contract offer from the employer by starting work, but only by signing the contract document. Surprising clauses in general terms and conditions are defined in accordance with Section 305 c Para. 1 BGB is not part of the contract.
A clause is surprising if it deviates significantly from the expectations of the user’s contractual partner and he does not need to expect it under the circumstances, in particular due to the design of the contract and its external appearance. According to a judgment of the Seventh Senate of April 16, 2008 ( 7 AZR 132/07 ), this is an employment contract provision which, in addition to a time limit for a period of one year, which is optically highlighted in bold and enlarged font, is included in the following text without any special Emphasis provides for a further time limit at the end of the six-month probationary period, a surprise clause. The time limit at the end of the probationary period is therefore not part of the contract and does not lead to the termination of the employment relationship.
Such a contractual provision also violates the provisions of Section 307 Para. 1 BGB standardized transparency requirement, as it does not allow an average employee to see with the necessary clarity at which point in time the employment relationship should end. With regard to the admissibility of the action, the Senate pointed out that the objection that a time limit had not been agreed upon could be treated with a general action for a declaratory judgment in accordance with. § 256 Abs. 1 ZPO and cannot be asserted with an action for the control of the time limit in accordance with Section 17 Sentence 1 TzBfG. The element of the offense of extending a contract pursuant to Section 14 Para. 2 TzBfG, the fixed-term employment contract in Section 14 Para. 2 sentence 1 2nd half. TzBfG requires that the agreement to postpone the termination date is agreed in writing before the end of the term of the previous contract and that the content of the contract otherwise remains unchanged. The Seventh Senate upheld this with detailed reasons in its judgment of January 16, 2008 ( 7 AZR 603/06 ).
However, on the occasion of the extension, the parties can make adjustments to the contract text to reflect the legal situation applicable at the time of the extension or agree on working conditions to which the fixed-term employee is entitled. This is therefore not an inadmissible new contract according to Section 14 Paragraph. 2 Sentence 2 TzBfG, if increased working hours are agreed in a fixed-term connection contract in order to take into account the employee’s claim in accordance with Section 9 TzBfG. To do this, the employee must have already expressed a request for an increase in accordance with Section 9 TzBfG before or when the extension was agreed, which the employer takes into account in the subsequent contract with the change in working hours. If the employer cannot explain and prove these requirements in the process, the subsequent fixed-term contract is invalid. By resolution of October 16, 2008 ( 7 AZR 253/07 (A) ), the Seventh Senate did not consider the age limit based on reaching the age of 60 in a collective agreement to be objectively justified in the sense. § 14 Abs. 1 TzBfG recognized.
There is no evidence that the age-related decline in the performance of members of the cabin crew can endanger the life and health of the aircraft occupants or people in the areas flown over. The disputed time limit could then only be set in accordance with the legal provisions in Section 14 Paragraph. 3 Sentence 1 TzBfG be justified. This presupposes that the provision does not conflict with any principles or rules of Community law that would render the national standard inapplicable.
Since the Court of Justice of the European Communities (ECJ) decided on November 22nd, 2005 in the “Mangold” case (C 144/04) that the provisions pursuant to Section 14 Para. 3 Sentence 4 TzBfG old version constitutes inadmissible discrimination based on age under Community law and the provision may not be applied by the national courts, it is necessary to have the ECJ review whether Section 14 Para. 3 Sentence 1 TzBfG aF was incompatible with Community law and what legal consequences arise if the provision violates European law. The Senate has suspended the legal dispute in accordance with Article 234 EC and submitted three questions on the interpretation of Community law to the ECJ for a preliminary ruling.