Definition and Significance of the Commencement Date
Der Commencement Date is a term commonly used in German law that assumes various meanings depending on the context. Generally, the commencement date refers to the point in time at which a specific legal effect, contract, deadline, proceeding, or measure begins. It thus stands in contrast to the so-called end date, which marks the conclusion or expiry of a legal process. The precise determination and significance of the commencement date play a central role in numerous areas of law, as rights and obligations often directly depend on it.
Commencement Date in Civil Law
General Definition and Legal Significance
In civil law, the commencement date describes the temporal threshold at which, for example, contracts take effect, rights arise, or obligations must be fulfilled. It is a key element in the determination of deadlines, conditions, and contract periods, and influences, among other things, limitation periods, maturity, and enforceability of claims.
Commencement of Contracts and Legal Transactions
Contracts, particularly continuing obligations such as lease, leasing, or employment agreements, regularly specify an express commencement date. The start of the contractual relationship may be set by calendar (‘from 1 May 2024’) or linked to a specific event (‘upon handover of the leased property’). If a commencement date is not expressly regulated, its beginning is determined by the statutory or contractual context.
In the German Civil Code (BGB), the commencement date is treated as a suspensive time provision pursuant to § 163 BGB. Accordingly, the legal effect of the transaction does not occur until a specified future date. This is practically relevant, for example, for suspensively timed promises of gifts or the commencement of tenancies in favor of third parties.
Commencement Date and Running of Deadlines
The commencement date regularly marks the starting point for the running of deadlines, such as in limitation periods (§ 199 BGB), termination and withdrawal periods (§ 355 BGB). Its precise determination is of considerable legal significance for all parties involved to ensure clarity regarding the beginning and end of the respective periods.
Commencement Date in Public Law
Administrative Action and Administrative Acts
In public law, especially in administrative procedure law, the commencement date refers to the moment from which an administrative act becomes effective or an official measure applies. Pursuant to Section 43 (2) of the Administrative Procedure Act (VwVfG), an administrative act is generally effective from the time it is announced; if its effect begins at a later date, this constitutes a commencement date within the meaning of a suspensive determination.
Building Law and Planning Law
In building law, the commencement date is particularly significant for the validity of permits (e.g., building permits, §§ 73 ff. Building Code). A construction project may only begin as of the commencement date, i.e., for example, from the finality of a permit. Planning approval decisions can also include commencement and end dates for projects.
Commencement Date in Criminal Procedure Law
Beginning of Execution and Measure Periods
In criminal enforcement law, the commencement date is relevant for the start of periods and measures, for example regarding suspended sentences on probation, the start of pre-trial detention, or the first enforcement of a measure pursuant to § 67 StGB. The correct determination of these dates is of great significance to those affected and is often subject to judicial review.
Commencement Date in Employment Law
Employment Contracts and Fixed-Term Agreements
In employment law, the commencement date is often expressly regulated in the employment contract. It establishes when the employment relationship gains legal standing and from when claims to remuneration, social security obligations, or dismissal protection apply. In the case of fixed-term employment relationships, the commencement date is decisive for the validity and calculation of total duration (§ 14 Part-Time and Fixed-Term Employment Act).
Probationary Period and Dismissal Protection
The determination of the commencement date also affects statutory dismissal protection. As protection against dismissal under § 1 of the Dismissal Protection Act (KSchG) only applies after six months of employment, the precise determination of the commencement date is critical in case of dispute.
Commencement Date in Tenancy Law
Start of Tenancy and Handover of the Leased Object
In tenancy law, the commencement date usually denotes the day on which the tenancy commences. This day determines the arising of rent claims, the obligation to hand over the property, and the beginning of statutory tenant protection provisions (§§ 535 ff. BGB).
Commencement Date in Insolvency Law
Initiation of Proceedings and Creditor Rights
In insolvency proceedings, the commencement date of the opening of proceedings (§ 27 Insolvency Code – InsO) is significant. From this date, numerous insolvency law regulations apply, particularly regarding avoidance and the safeguarding of equal treatment of creditors.
Commencement Date in Tax Law
Start of Tax Liability and Assessment Periods
In tax law, the commencement date is the point in time relevant for the taxpayer from which the tax liability arises or special tax benefits apply. The commencement date is also a key reference point for assessment and limitation periods (§ 170 Fiscal Code – AO).
Legal Consequences of Incorrect Determination of the Commencement Date
An unclear, incorrect, or contradictory determination of the commencement date may lead to considerable legal uncertainty and disputes. Depending on the area of law affected, this may result in invalidity of a contract, delay of legal effects, or invalidity of administrative acts.
Outlook: Significance of the Commencement Date in Legal Practice
The determination of the commencement date is central to all legal transactions and official actions. Its precise and unequivocal definition serves the legal certainty and transparency of all parties involved and ensures the smooth execution of contracts, proceedings, and measures. Errors in determining the commencement date can result in far-reaching legal and practical consequences.Conclusion: The commencement date represents a crucial reference point for the start and duration of rights and obligations in many areas of German law. It significantly influences legal certainty, enforceability of claims, and the binding nature of official acts. The clear and early determination of the commencement date is therefore an indispensable element of legally effective structuring and should be given special consideration both in contract drafting as well as in all official and judicial actions.
Frequently Asked Questions
Can the commencement date of an employment contract be changed retroactively?
In principle, the commencement date stipulated in the employment contract is binding on both parties. A subsequent change to the commencement date is possible, but requires the express consent of both employee and employer. Unilateral postponement by one party is legally invalid. For evidentiary reasons, the change should always be made in writing. If the commencement date is postponed by an amendment agreement, the start of mutual rights and obligations also shifts, especially the employee’s entitlement to remuneration and the commencement of social security obligations. It is essential to observe any further contractual components, such as fixed-term contracts and probationary periods, since their duration is also based on the actual start date of employment.
What are the legal consequences if the employee does not appear on the commencement date?
If the employee fails to appear at the agreed commencement date without excuse, this generally constitutes a breach of the main obligation of the employment contract. In such cases, the employer may issue a formal warning. Continued failure to fulfill duties may even justify extraordinary or ordinary termination. There is no entitlement to remuneration for the unexcused period of absence. If the absence is excused for good cause, such as illness, the employee must immediately inform the employer and, if applicable, present a certificate of incapacity for work.
Is employment before the contractually agreed commencement date permissible?
Commencing employment before the contractually agreed commencement date is permissible if both parties mutually agree. In such a case, the employment relationship begins with the actual start of work. This affects the accrual of claims, such as payment, leave entitlement, and social security obligations. The employer is obliged to correctly register the employee with the social security bodies before employment begins. For legal certainty, it is advisable to conclude a written supplementary agreement for the earlier commencement.
What happens if no commencement date is specified in the employment contract?
If the employment contract does not expressly specify a commencement date, the employer is obliged under § 2 para. 1 of the Documentation Act (NachwG) to record the essential terms of the contract, including the employment start date, in writing and provide them to the employee no later than one month after the agreed start of the employment relationship. If the commencement date is missing and there is disagreement about the actual start, the interpretation depends on the contractual circumstances, such as notification of starting work or actually commencing work. Retroactively establishing an employment relationship is generally not permitted; the actual commencement of work is decisive unless expressly agreed otherwise.
What impact does the commencement date have on social security law assessment?
The commencement date of an employment relationship marks the point from which the employment becomes subject to social security contributions. Employers are required to register the employee with the social security institutions no later than on the start date. From the commencement date, contribution and reporting obligations for health, nursing care, pension, and unemployment insurance arise. Deadlines for reporting employment relationships to social security are also based on this date. Late registration may result in fines and back payments.
How does the commencement date affect fixed-term employment contracts and probationary periods?
Upon concluding a fixed-term employment contract, the duration of the fixed term begins with the commencement date specified in the contract, unless another date is expressly agreed upon. The same applies to the probationary period, which generally also starts at the intended beginning of employment. If the actual employment start is postponed without an appropriate contractual amendment, this may lead to legal uncertainty regarding the fixed-term end and probationary period. Employers and employees should therefore always ensure a clear contractual arrangement, especially if changes to the starting date occur subsequently. The statutory maximum fixed-term and probationary periods are based on the actual, not the originally intended, commencement date.
Does the commencement date have to be explicitly agreed in writing?
Under German law, employment contracts are generally not subject to formal requirements, i.e., they may be concluded orally. However, pursuant to the Documentation Act (NachwG), the employer is obligated to provide a written record of the essential contractual terms, including the commencement date, no later than one month after the start of employment. The absence of written documentation does not affect the validity of the employment relationship, but may lead to difficulties in providing evidence, especially in cases of dispute. A clear written agreement regarding the commencement date therefore serves the legal certainty of both parties.
