• * This is a literal translation of the German term « rechtspolitisch ». The German category « Rechtsp (...)
• 1 https://www.tagesspiegel.de/politik/ein-moderner-ordnungsrahmen-fur-mobiles-arbeiten-kommt-8017333. (...)
• 2 Referentenentwurf des Bundesministeriums für Arbeit und Soziales, Entwurf eines Gesetzes zur mobile (...)
• 3 The 19th legislature refers to the previous federal parliamentary term (« Bundestag »), which ended (...)
• 4 Different terms are used in Germany, such as « Telearbeit », « Telearbeitsplätze », « mobile Arbeit(...)
• 5 Framework Agreement on Telework of 16 July 2002.
• 6 Concerning the differences of transposition between Member States, see Commission of the European C (...)

1« A modern regulatory framework for telework will see the light of day »1 said German Federal Minister of Labour Hubertus Heil in January 2022, after two versions of his bill had failed2 during the 19th legislature3. Lacking a legal framework for telework, the German legal system has no general definition of this mode of work organisation4, which raises the question of whether, and to what extent, lawmakers must intervene. Unlike France, the European Framework Agreement on telework, signed by the European social partners in 2002, has not led to the passing of any legislation in Germany5. In actual fact, it has only been implemented in the form of collective agreements signed at branch and company level6.

• 7 U. Mückenberger and A. Supiot, « Ordre public social et communauté - Deux cultures du droit du trav (...)

3In addition, many rules are derived from collective agreement-based standards. Legislative intervention is therefore quite rare, unlike in French law, where the term « légicentrisme » sums up rather aptly the frenetic activity of French legislators, which translates into a multitude of political bills put forward by the government. This difference can be explained in particular by the constitutional and political model of each State. As authors Ulrich Mückenberger and Alain Supiot remarked in their comparative analysis7, « German democracy, placed under parliamentary control and subject to scrutiny of constitutionality, lends itself more to conservatism than to political experimentation », while French democracy is « oriented towards the executive function, [and] favours (…) transformations of the action and intervention of the State ».

• 8 See for example A. Barrein, Das Recht auf Home-Office, Duncker & Humblot, 2022; K. Dulle, Rechtsfra (...)
• 9 See on this subject K. Brenke, « Home Office : Möglichkeiten werden bei weitem nicht ausgeschöpft » (...)
• 10 H. Heil: https://www.tagesspiegel.de/politik/ein-moderner-ordnungsrahmen-fur-mobiles-arbeiten-kommt (...)

5Telework has been the subject of a great deal of academic work for many years8, but the bill published at the height of the public health crisis caused by the Covid 19 panic reignited the debate, focusing on the need for a legislative framework. Although teleworking long remained a marginal form of work organisation in Germany compared to the European average, the Covid 19 pandemic, however, did see it expand9. Since then, the theoretical issue has turned into a practical one. « I am favourable to us drawing the consequences for the world of work of this large-scale unplanned trial of teleworking due to the pandemic », declared the German Federal Minister of Labour in 2022, whilst stressing that the new coalition government was going to create a « legal right to telework »10.

• 11 R. Krause, « Digitalisierung der Arbeitswelt - Herausforderungen und Regelungsbedarf », NZA, 2016, (...)
• 12 See in particular Art. 106 GewO and Art. 241(2) BGB.
• 13 A. Barrein, Das Recht auf Home-Office, op. cit., p. 200; C. Picker, « Rechtsanspruch auf Homeoffice (...)
• 14 LAG Rheinland-Pfalz, 18 December 2014 - 5 Sa 378/14.

7Those in favour of a right to telework consider that the employee’s autonomy should be considered de jure, as it already exists de facto due to the use of information and communication technologies that offer the worker the possibility of carrying out their tasks off the company’s premises and at any time11. De lege lata, the employee does not have a general right to impose teleworking on their employer. Nevertheless, given that German law is characterised by the balancing of interests, which is facilitated by having a general legislative framework open to interpretation12, it is not legally impossible that the interest in implementing telework for certain particularly vulnerable employees should prevail over the opposing interests of the employer13. Until now, this has been a purely theoretical possibility, unconfirmed by case law, which tends to give precedence to the employer’s freedom of enterprise when it comes to the organisation of their company14. Indeed, codifying a right to telework would contribute to reinforcing the employee’s autonomy and therefore, inevitably, to limiting the power of the employer, which would affect their freedom of enterprise, which is constitutionally protected as a fundamental right.

• 15 See on this subject L. Favoreu et al., Droits des libertés fondamentales, Dalloz, 8th ed., 2021.

9When drawing up a legal provision, legislators must ensure it is compliant with constitutional law, including basic rights. Article 1(3) of the Constitution of the Federal Republic of Germany (GG) states that the basic rights shall bind the legislature, the executive and the judiciary as directly applicable law. Although the notion of basic or fundamental rights is used in a great many national legal systems, it would be an error to assume that it always has the same meaning15.

• 16 Art. 1 to 19 GG.
• 17 S. 93(1)(4) GG, remedy known as « Verfassungsbeschwerde ».

10In Germany, the basic rights are explicitly listed and protected by the Constitution16, which grants every citizen the possibility of taking any violation of those rights by the public authorities to the Federal Constitutional Court17.

• 18 For a detailed list of interests, see A. Barrein, Das Recht auf Home-Office, op. cit., p. 283. Conc (...)
• 19 BVerfG, 6 June 2018 - 1 BvL 7/14, 1 BvR 1375/14, BVerfGE 149, 126, 143 ; BVerfG, 23 October 2013 - (...)

11Concerning the codification of an employee’s right to telework, legislators are under an obligation to reconcile the infringement of the employer’s fundamental rights this would represent with the objective pursued by the provision establishing this right in favour of the employee18. It should be noted that, in weighing up the different interests, German legislators have a margin of appreciation regarding the objective in question, and also on the appropriateness and necessity of the means employed to achieve it19.

• 20 Deduced from Articles 12, 14, 2 GG.
• 21 LAG München, 29 July 2009 - 11 Sa 230/09; LAG Hamburg, 15 April 2015 - 5 Sa 107/12 ; LAG Köln, 10 D (...)
• 22 BDA, « Stellungnahme zum MAG », 21 December 2020, p. 1. Concerning limited judicial control, see fo (...)
• 23 Art. 106 GewO.
• 24 BDA, « Stellungnahme zum MAG », op. cit., p. 1; C. Picker, « Rechtsanspruch auf Homeoffice », op. c (...)
• 25 C. Picker, « Rechtsanspruch auf Homeoffice », op. cit.

12On the employer’s side, it is freedom of enterprise, which is recognised as a basic freedom by German law20 that is at the heart of the debate on teleworking. Freedom of entrepreneurial decision-making, which gives the employer the freedom to organise their company as they wish, including to introduce telework as a mode of work organisation - or not -21, is constitutionally protected. By opposing the codification of a right to telework, the employers’ organisation BDA is emphasising that the public authorities are not able to take over their freedom to make entrepreneurial decisions about the organisation of a company22. Indeed, the employer could have their contractual freedom restricted, as well as their ability to determine the content, time and place of work23, which could prevent them adapting the employment relationship to the requirements of the market. That would amount not only to ignoring or failing to understand the fact that using telework is not always an economically sound decision for the employer, which is a matter that they alone can judge, but also to calling into question the essential function of the employment contract by relativising the employer’s right to direct their employee in favour of greater employee autonomy24. In this sense, legally restricting the employer’s right of direction as a constituent element in the employment relationship would involve the risk of a distorting the balance of the employment contract25.

• 26 BVerfG, 10 March 1998 - 1 BvR 178/97, BVerfGE 97, 332, 349.
• 27 BMAS, RefE Mobile Arbeit-Gesetz (MAG), 14 January 2021, p. 8.
• 28 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life (...)
• 29 Sachverständigenkommission für den Dritten Gleichstellungsbericht [Committee of Experts for the Thi (...)
• 30 The fundamental right of occupational freedom enshrined in Article 12 of the German Constitution, i (...)

13Concerning the employee, it is necessary to take into consideration the fundamental rights that could make it necessary to enshrine a right to telework in law. The political aim of encouraging a better work-life balance finds its legal dimension in Article 6 GG, from which the Federal Constitutional Court has deduced that the State has an obligation to ensure that the exercising of parental responsibilities does not lead to professional disadvantages26. Indeed, the ministerial bill on teleworking specifically aimed to transpose27 the provision of Article 6 of Directive (EU) 2019/115828, which provides that « Member States shall take the necessary measures to ensure that workers with children up to a specified age (...) and carers, have the right to request flexible working arrangements for caring purposes ». In this context, those in favour of a right to telework argue that constitutional law and European Union law allow employees not to be unable to fulfil their professional and family obligations by giving them the possibility of asking to telework from home, with the result that codification would represent a recognised legislative clarification29. However, in the ministerial bill, the right to telework is not reserved for such categories of employees and is liable to be granted to all employees without distinction. Such a plan can be based on the consideration that the inherent inferiority of the status of the employee causes an imbalance in the negotiation with the employer, with the result that, without legislation, there is a risk that in practice the employee will not have access to telework30.

• 31 This is a conference organised every two years by the « Deutscher Juristentag » association: https: (...)
• 32 Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work (...)
• 33 R. Krause, « Digitalisierung der Arbeitswelt - Herausforderungen und Regelungsbedarf », op. cit. ; (...)
• 34 BMAS, RefE Mobile Arbeit-Gesetz (MAG), 4 October 2020.
• 35 See on this subject: F. J. Düwell, « Warten auf ein Gesetz zur mobilen Arbeit », BB, 2020, p. 2676.
• 36 On the basis of an average annual distribution of regular working time over 5 days a week.

16In 2016, at the « Deutscher Juristentag »31 politico-legal conference on the digitalisation of the work, the idea was put forward of a legal right to telework asserted alongside the right to part-time working enshrined in Article 8 TzBfG32. These are both models of flexible working, the former pertaining to location and the latter to working time33. After a long period in preparation, the first draft of the bill put forward by the German Federal Ministry of Labour and Social Affairs (BMAS) came out in 202034. It contained an « absolute » right to telework with conditions that were, in many respects, similar to those of the right to work part-time35. In particular it was provided that an employee whose employment contract has lasted more than six months could demand of their employee that regular telework be set up for up to 24 days per year36, taking into account the beginning, the duration, the spread and the concrete form of the teleworking arrangement desired by the employee. The employer would only have been able to refuse the employee’s request if the activity concerned by the employment contract did not allow for teleworking, or if there were company-related reasons for not allowing it.

• 37 BMAS, RefE Mobile Arbeit-Gesetz (MAG), 26 November 2020 (last updated: 14 January 2021).
• 38 D. Dohrmann, « Referentenentwurf eines Mobile Arbeits-Gesetz – Ein Schritt in die Arbeitswelt 4.0!? (...)
• 39 A. Barrein, Das Recht auf Home-Office, op. cit., p. 232 ; R. Krause, Verhandlungen des 71. Deutsche (...)
• 40 Concerning the criticisms made by the social partners, see in particular: BDA, « Stellungnahme zum (...)

17Although the first version of the ministerial bill was stopped by an early coordination of the 19th legislature by the Federal Chancellor, it did not prevent the Minister of Labour Hubertus Heil from publishing a second draft of his bill very soon afterwards37. Instead of an « absolute » right for the employee to telework, this time the bill provided only for a « negotiating right ». Now the employer would have to discuss the arrangements for teleworking with the employee with a view to reaching an agreement, it being understood that the employer would have to inform the employee in writing if they refused and give their reasons within a specified time limit if no agreement was reached. The procedure also presented substantial parallels with that provided by Article 8 TzBfG38. Furthermore, the concept was similar to a provision of Dutch law, in particular Article 2 Wfw, to which German legal opinion had already referred as a potential source of inspiration39. Whatever the case, this bill - also the subject of strong criticisms for various reasons40 - was not passed in the 19th legislature.

• 41 Koalitionsvertrag zwischen SPD, BÜNDNIS 90/DIE GRÜNEN und FDP, 2021, p. 69.

18Since the beginning of the 20th legislature, the same Minister of Labour has continued with his plans to codify a « negotiating right » on telework41 which would form a part of the intended legislative framework for telework more generally.

• 42 F. J. Düwell, « Warten auf ein Gesetz zur mobilen Arbeit », op. cit.

19« A modern labour market needs a modern regulatory framework. To have that, it is necessary to regulate telework »42. Indeed, teleworking calls into question the application of labour law rules that rely on a concept of the employment relationship taking place at the place of production established in response to 19th century industrialisation. However, telework is only one of many new forms work that have arisen from the digital revolution; forms that are questioning the limits and flexibility of the labour law model in force in terms of its ability to respond to new legal challenges. On the one hand, it would be possible to create a legal regime specific to telework (A). On the other, it is possible to envisage a simple adjustment of the existing regulations, given that the particularities of telework often raise questions calling for more overarching responses (B).

• 43 M. Fenski, Außerbetriebliche Arbeitsverhältnisse, op. cit., p. 87; W. Kilian, « Das überkommene Ver (...)
• 44 BDA, « Stellungnahme zum MAG », op. cit., p. 1.

20To the question of whether to adopt a legal regime specific to telework, raised even before the current debate was prompted by the ministerial bill, in the past German legal opinion has most often replied in the negative43. From a practical point of view, the creation of such a legal regime can be presented either as a means of providing greater security or a legislative curb on telework. It could indeed reduce the legal uncertainty for those involved by clarifying the application of certain rules of labour law or by adapting them to the particularities of telework, which in the end could encourage the use of telework. However, depending on its conception, a legal regime specific to telework is also liable to compromise tailored solutions, which would be better guaranteed by the collective agreement-based standards which then begin to look indispensable to the successful implementation of teleworking44.

• 45 DGB, « Positionspapier für einen gesetzlichen Ordnungsrahmen für selbstbestimmtes Arbeiten inklusiv (...)

21As for the trade unions, they recommend a legislative framework for telework which reinforces employee autonomy in terms of working time and place of work, whilst guaranteeing adequate protection of the teleworker in terms of health and safety at work45. In particular they are demanding that the change to telework operate on a voluntary basis for the employee, that the full application of the working time and health and safety at work legislation be guaranteed, that the teleworker’s « right to disconnect » be reinforced, that clear rules relating to liability be established and that the costs of hardware and tools for work purposes be covered by the employer.

• 46 C. Picker, « Rechtsanspruch auf Homeoffice », op. cit.
• 47 BVerfG, 29 December 2004 - 1 BvR 2283/03; BVerfG, 3 April 2001 - 1 BvL 32/97, BVerfGE 103, 293, 306 (...)
• 48 BVerfG, 24 May 1977 - 2 BvL 11/74, BVerfGE 44, 322, 340; C. Picker, « Rechtsanspruch auf Homeoffice (...)
• 49 BVerfG, 4 July 1995 - 1 BvF 2, 1421/86, 1 BvF 1,2,3,4/87, BVerfGE 92, 365, 395.
• 50 BVerfG, 24 May 1977 - 2 BvL 11/74, BVerfGE 44, 322, 342.

22A part of German legal opinion considers that the unions’ call for state assistance in the regulation of telework is premature given the social partners’ autonomy of collective bargaining (« Tarifautonomie »), which is protected by Article 9(3) of the German Constitution46. Admittedly, this autonomy does not give the social partners a monopoly on the creation of rules47, but the State has to a large extent delegated its competence in the area of the regulation of working to them48. Thus Article 9(3) of the German Constitution allows the social partners to create labour regulations autonomously and without State influence49. The subsidiary competence of the State in matters relating to regulations only comes into play if the social partners are unable to fulfil the mission entrusted to them - namely to organise working life in an appropriate way by means of collective agreement-based standards - and on the condition that the social vulnerability of the employees or another public interest renders State intervention necessary50.

• 51 S. 87(1)(14) BetrVG.
• 52 S. 8(1) SGB VII.
• 53 Gesetz zur Förderung der Betriebsratswahlen und der Betriebsratsarbeit in einer digitalen Arbeitswe (...)

24Finally, it should be noted that the bill did not only seek to create a legal regime specific to telework, but also included the addition of clarifications to the BetrVG law concerning the participation of staff representatives in the organisation of telework51, and to the Social Code (SGB VII)52 concerning the recognition of occupational accidents in the event of teleworking, especially teleworking from home. Unlike the provisions intended to create a specific legal regime, these changes were in fact passed during the 19th legislature53. This therefore highlights the possibility of adapting the different provisions that already exist to changes in working practices generally arising out of the digital revolution.

• 54 See on this subject R. Krause, Verhandlungen des 71. Deutschen Juristentages 2016, op. cit., p. B 2 (...)

26In line with their usual positions, the employers’ organisations advocate leaving market forces to deal with digital changes via deregulation, while the unions argue for new regulations54.

• 55 BDA, « Stellungnahme zum MAG », op. cit., p. 8.

27As regards the provisions on working time, it is mainly the employers’ organisations that are urging a relaxation of the rules on rest times and maximum daily working hours, in order to allow a flexible spread of the working time within the maximum number of hours allowed per week55. From their point of view, the legislation should offer more freedom to respond to the wishes and needs expressed by the parties to the employment contract, namely the desire for autonomy on the part of the employee and for greater flexibility on the part of the employer.

• 56 DGB, « DGB-Thesen für den 71. DJT », AuR 2016, p. 344. In the same sense, see: R. Krause, « Digital (...)
• 57 Koalitionsvertrag zwischen SPD, BÜNDNIS 90/DIE GRÜNEN und FDP, 2021, p. 68.

28The unions, for their part, consider that the current legislation should not be relaxed insofar as it already constitutes a flexible enough framework, allowing appropriate adaptation to changes in working practices without endangering employees’ health and safety56. The government coalition agreement provides for the maintaining of the maximum daily working time of 8 hours laid down by Article 3 ArbZG, whilst emphasising the intention to help the actors concerned to make flexible working models possible57.

• 58 CJEU 14 May 2019, C-55/18.
• 59 This is a model of work organisation in which the employer does not set a start and finish time for (...)
• 60 BAG, 13 September 2022 - 1 ABR 22/21.

29In this context, reference is made to the CCOO judgment of the Court of Justice of the European Union (CJEU) of 14 May 201958, which seems to have called into question the application of a flexible working time model used in Germany, known as « Vertrauensarbeitszeit »59, by requiring that Member States oblige employers to introduce « an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured ». While politicians are looking at how to adapt the case law of the CJEU, the German Federal Labour Court (BAG) already ruled in 2022 that employers are obliged to introduce a system allowing full recording of working time60. The decision of the BAG concerns all employees, not just teleworkers, and is based on the employer’s health and safety obligations, in particular Article 3(2)(1) ArbSchG. Taking account of the fact that the BAG did not go into any detail on how this recording should be carried out, a question remains: to what extent can the flexible working time models applied in Germany effectively be maintained, in light of the requirements of national and European case law?

• 61 This is a matter, more precisely, of knowing to what extent the services provided by the employee, (...)
• 62 Law no. 2016-1088 of 8 August 2016 on work, modernising labour relations and securing career paths, (...)
• 63 In this context, the question is also raised of the extent to which French model of a right to disc (...)
• 64 R. Krause, « Digitalisierung der Arbeitswelt - Herausforderungen und Regelungsbedarf », op. cit., p (...)
• 65 Like Evonik since 2013, BMW since 2014, Daimler and Deutsche Telekom, etc. See on this subject: Eur (...)

30The problem of the constant availability of the employee raised by digital revolution is debated from the angle of what is categorised as working time61, and also concerns the « right to disconnect » in terms of working time and occupational health and safety. Unlike France, which included a right to disconnect in its Labour Code in 201762, Germany has not passed legislation on this issue63. In fact, there is a consensus that a right to disconnect is already implicit in the current provisions, with the result that there is reason to doubt the need for specific legislation. Effective implementation is considered as being a matter for the social partners64. In Germany, many companies have long negotiated a right to disconnect as part the collective agreements, like Volkswagen which introduced it as far back as 201165.

• 66 IG-Metall, « Anti-Stress-Verordnung », 2012: https://www.igmetall.de/download/0188530_Anti_Stress-V (...)
• 67 in 2013, the Federal Council (« Bundesrat ») also put forward a regulatory proposal on the risks li (...)
• 68 See for example R. Krause, « Digitalisierung der Arbeitswelt - Herausforderungen und Regelungsbedar (...)
• 69 See in particular BT-Drs. 19/3895, 21 August 2018; BT-Drs. 19/8688, 18 January 2017; BT-Drs. 18/229 (...)

31Aware of the fact that constant connectivity is a factor in psychosocial risks, a few trade unions66 already addressed this issue in 2012, specifically in connection with the fight against stress at work67. Generally speaking, it should be noted that in German law, consideration of psychosocial risks still features much less prominently than in French law, which has progressively made them a subject of generalised attention. Although the demand for State intervention on these issues is growing68, the Federal government has until now considered that the existing provisions offered adequate instruments to deal with them, in particular the assessment of risks69.

• 70 It should be noted that, unlike in French law, collective agreement-based standards do not have an (...)

34These recent trends in working practices mean that there is a need to adapt labour law, and that some State intervention is no doubt indispensable to clarify the legal situation for all employment relationships, which collective agreement-based standards cannot do due to their restricted scope70. The fact that German legislators are willing to make changes is illustrated by the addition of clarifications to the BetrVG law concerning the participation of staff representatives in the organisation of telework, and to the Social Code (SGB VII) concerning the recognition of occupational accidents in the event of teleworking, especially teleworking from home. What remains to be seen is the extent to which the many politico-legal debates will influence the new government in its intention to create a modern regulatory framework for telework.