According to Section 60a BMTG II, the employer’s provisions on company apartments in the current version apply to the allocation of company apartments (work apartments) and the assessment of company apartment remuneration.
Provision in the sense of the collective bargaining standard is any abstract general regulation that the public employer applies and to which it binds itself. According to a decision of the Ninth Senate of September 18, 2007 ( 9 AZR 822/06 ), this also includes the regulations on Reich service apartments (DWV) of January 30, 1937 applied by a municipality. The allocation of a company apartment according to the DWV does not constitute a tenancy agreement for living space. The rights and obligations arising from the company apartment relationship are generally based on the employment law agreements and not on the provisions of tenancy law.
The application of the DWV to a company apartment, which in the language of the German Civil Code is referred to as a company apartment as opposed to a company rental apartment, does not violate higher-ranking law. The indispensable provision of Section 576b of the German Civil Code (BGB) stipulates that tenancy law also applies to work-related housing arrangements. However, according to the established case law of the Federal Labor Court, this validity order refers exclusively to the provisions regarding the termination of the legal relationship.
The provisions in No. 18 paragraph. 3 DWV generally rule out a reduction in the company accommodation allowance due to disruption of the contractual use of the company apartment. As long as no regulation is made by the authority responsible for changing the DWV, the employer has to make a discretionary decision regarding exceptions to this rule. In doing so, he must take into account the civil law provisions regarding reductions due to material defects (§ 536 Para. 1 BGB).