Termination – Legal Term and Areas of Application
General Definition
The term “Einstellung” (termination/suspension) in German law is a multifaceted concept and refers to the deliberate ending, omission, or pausing of a governmental, administrative, or private proceeding, undertaking, or process. Legally, it is especially relevant in criminal proceedings, administrative procedures, civil proceedings, and in employment relationships. The following sections examine the different legal aspects, requirements, effects, and legal consequences of termination in various areas of law.
Termination in Criminal Law
Significance and Legal Basis
The termination of a criminal proceeding marks the formal decision by the public prosecutor’s office or the court not to continue pursuing an investigative or criminal proceeding. It is extensively regulated in the Code of Criminal Procedure, particularly in sections 153 et seq. of the Code of Criminal Procedure (StPO).
Types of Termination
Termination for Lack of Sufficient Suspicion (§ 170 (2) StPO)
If, after completion of the investigation, insufficient suspicion of an offense is found, the public prosecutor terminates the proceedings. The case is then not brought to trial. This provision serves to protect those involved from unjustified prosecution.
Opportunistic Terminations (§§ 153, 153a StPO)
Irrespective of the question of guilt, a proceeding may be terminated if the fault is minor (triviality) or if conditions and directives can be fulfilled. The decision follows the principle of opportunity. Section 153a StPO is particularly relevant, permitting termination upon fulfillment of certain conditions (such as payment of fines).
Termination for Other Reasons (§ 154, § 154a StPO)
If other proceedings with more serious allegations are pending, the case involving a lesser offense may be terminated.
Legal Consequences and Effect
A termination does not automatically constitute an acquittal or a finding of innocence. Prosecution for the specific matter is concluded—depending on the type of termination, with or without the possibility of resumption. The persons concerned are not considered as having a criminal record.
Termination in Civil Procedure
Significance
In civil court proceedings, termination can occur, among others, as a suspension or transfer of the proceeding. Termination is particularly significant in connection with insolvency proceedings or withdrawal of the action.
Cases of Application (§ 249 ZPO, § 352 ZPO)
- Termination of enforcement proceedings (e.g., under § 775 ZPO)
- Termination of the proceeding upon certain conditions, such as settlements, withdrawal of the action, or disposal of the principal matter
- Provisional termination due to insolvency proceedings pursuant to § 240 ZPO (so-called stay of the proceeding)
Legal Consequences
The cancellation or termination of the proceeding leads to an interruption or end of the procedure. Measures already taken by the court remain effective where the law prescribes.
Termination in Administrative Proceedings
Definition and Regulations
Termination of an administrative proceeding is also of significance in administrative law. This refers in particular to the formal conclusion of a proceeding by the responsible authority.
Reasons for Termination (§§ 42, 43 Administrative Procedure Act – VwVfG)
Termination may occur if the proceeding becomes inadmissible or moot, for example, due to withdrawal of the application or settlement of the matter. The authority regularly examines ex officio whether further processing is necessary.
Legal Consequences
With termination, the proceeding ends and further administrative measures are discontinued. Depending on the type of procedure, appeals may be possible against the termination, such as by objection or action for obligation.
Termination in Employment Law
Significance under Works Constitution Law
In employment law, termination in particular refers to the initial establishment of an employment relationship under § 99 Works Constitution Act (BetrVG). This involves the integration of an employee into a business establishment, with codetermination rights for the works council.
Termination in the Context of Anti-Discrimination Protection
Disadvantaging a person during the hiring process can contravene the General Equal Treatment Act (AGG). Legal consequences arise from the AGG, especially concerning claims for compensation or damages.
Termination in Social Law
Termination of Social Benefits
In social law, the term “termination” covers the ending or suspension of ongoing social benefits, e.g., pursuant to § 48 SGB X. This can occur if circumstances change or eligibility requirements no longer exist.
Procedural Character
The authority issues a negative administrative act concerning the continued granting of the benefit. Those entitled to benefits regularly have legal remedies such as objection and legal action.
Summary Overview
The term “Einstellung” has many facets in German law and is associated in various legal fields with its own requirements, procedures, and legal consequences. Careful legal examination of the specific area of application is essential, as the type and method of termination can have significant impacts on persons involved and the particular procedure. In case of dispute, deadlines and instructions on legal remedies in connection with termination are especially decisive.
References
- Meyer-Goßner/Schmitt: Strafprozessordnung
- Musielak/Voit: Zivilprozessordnung
- Kopp/Ramsauer: Verwaltungsverfahrensgesetz
- ErfK: Betriebsverfassungsgesetz, Allgemeines Gleichbehandlungsgesetz (AGG)
- Sozialgesetzbuch (SGB X) – Verwaltungsgesetzbuch
Note: This article provides a comprehensive overview of the legal term “Einstellung” (termination/suspension) in various legal areas and does not claim to be exhaustive.
Frequently Asked Questions
What legal requirements apply to the wording of job postings?
Job postings in Germany are subject to various legal requirements, in particular under the General Equal Treatment Act (AGG). Accordingly, all job ads must be formulated to ensure there is no discrimination on the grounds listed in § 1 AGG. These include, for example, gender, ethnic origin, religion, belief, disability, age, or sexual identity. The use of gender-neutral language, such as (m/f/d) for male, female, and diverse, is mandatory. Also, requirements for applicants must be objectively justified and necessary for the performance of the job. Impermissible exclusion criteria—such as an upper age limit without valid reason—may result in claims for compensation or damages in the event of rejection. Furthermore, data protection regulations apply: only personal data necessary for the application process may be collected.
What documents may an employer legally require during the application process?
Employers may generally require only those application documents that are necessary to assess the applicant’s suitability and qualifications for the advertised position. These typically include a cover letter, curriculum vitae, and proof of qualifications (such as certificates, diplomas). Collecting health-related information, details of religious affiliation, or political beliefs is prohibited under the General Data Protection Regulation (GDPR) and the AGG, unless specifically justified by the job (e.g., in religious organizations). The collection and processing of personal data must also be transparent, with a clearly stated purpose, and erasure obligations apply if the application process is withdrawn or completed.
What legal restrictions apply during job interviews?
During job interviews, the employer is bound by the provisions of the AGG and data protection law. Questions without relevance to the job may not generally be asked—such as questions regarding existing pregnancy, family planning, or political opinion. The applicant has a so-called “right to lie” if impermissible questions are nevertheless asked. Answers to permissible questions (e.g. professional qualifications) must be truthful. When conducting assessment centers or aptitude tests, it must be ensured that no personal rights are infringed and that tests are objective, transparent, and proportionate. If third-party tests or selection procedures are used, prior applicant consent is always required.
To what extent is there an obligation to ensure equal treatment in the hiring process?
The AGG obliges employers to ensure equal treatment of all applicants in recruitment procedures. Discrimination for any of the reasons stated in § 1 AGG is prohibited. This affects both the selection process and all communications. Rejections must not be based on discriminatory grounds, and job postings or internal selection procedures may not discriminate against an applicant or group of applicants. Violations of these provisions can result in claims for compensation by the disadvantaged person. Furthermore, there is a duty to document the decision-making process to ensure that selection is transparent and traceable.
What information must the employer compulsorily provide at the conclusion of an employment contract?
According to the Evidence Act (NachwG), the employer is required to provide the employee with written documentation of the essential contractual terms no later than one month after the agreed start of employment. This includes, in particular, the start and expected duration of the employment relationship, workplace, a brief description of the tasks, composition and amount of pay, working time, vacation entitlement, notice periods, and references to applicable collective agreements or company or service agreements. Since August 1, 2022, the requirements have been further tightened and expanded by the “Act to Implement Directive (EU) 2019/1152 on Transparent and Predictable Working Conditions.”
What codetermination rights does the works council have regarding recruitment?
Under the Works Constitution Act (BetrVG), the works council in businesses with a works council has a codetermination right in every recruitment (§ 99 BetrVG). The employer must fully inform the works council of each hiring and obtain its consent. The works council can refuse consent if, for example, statutory, collectively agreed or internal provisions are violated, or the recruitment would place the workforce at a disadvantage. If consent is refused, the employer may apply to the labor court for substitute approval. Recruitment without the involvement of the works council is legally invalid.
What legal rules apply to fixed-term employment contracts?
Fixed-term employments in Germany are governed by the Part-Time and Fixed-Term Employment Act (TzBfG). A fixed term can exist with or without objective justification. In the absence of objective justification, extension is limited to a maximum of two times and a total of two years for the same employer (§ 14 (2) TzBfG). If there is objective justification—such as maternity cover, temporary operational need, or probation—a longer or renewed fixed-term contract is permissible (§ 14 (1) TzBfG). Every fixed-term contract must be concluded in writing and before employment begins. Subsequent documentation is not sufficient and leads to an unlimited employment relationship (written form requirement pursuant to § 14 (4) TzBfG). In cases of successive fixed-term contracts or abusive arrangements, there is a risk that an unlimited employment relationship is established.
