Selection

Term and Definition of Selection in Law

Selection is a term of English origin, which translates to ‘choice’ or ‘selection.’ In a legal context, ‘selection’ encompasses all procedures, measures, and legal processes aimed at the targeted choice of persons, objects, rights, or processes from a multitude of options. Its application may occur in various areas of law, including civil law, administrative law, labor law, data protection law, competition law, and European law. The concrete design of selection is often subject to specific statutory requirements, procedural provisions, and key judicial rulings.

Historical Development and Significance

The term ‘selection’ is particularly used in international and comparative legal contexts—such as personnel recruitment procedures, procurement law, contract conclusions, or data protection-related processes. The legal relevance of selection has further increased in recent decades due to growing internationalization and digitalization.

Application of Law and Forms of Selection

Civil Law Selection Decisions

In civil law, selection is particularly relevant when choosing contracting parties, such as in procurement procedures (procurement law) or during the initiation of business and contract negotiations. For these selection procedures, especially in consumer protection, anti-discrimination law, and public offers, there are legal frameworks to ensure free, equal, and non-discriminatory access.

Selection during Contract Negotiations

As part of private autonomy, contracting parties are generally free to choose with whom they enter into contracts (principle of contractual freedom, Sec. 311 BGB). However, restrictions apply due to statutory prohibitions on discrimination, particularly as provided by the General Equal Treatment Act (AGG). A selection decision (‘selection’) that contravenes legally protected characteristics such as origin, gender, age, or religion may be legally contestable and subject to sanctions.

Selection Procedures in Labor Law

In labor law, selection is a key concept in decisions made during hiring, promotions, or dismissals.

Selection in Recruitment

Employers are generally entitled to select candidates at their discretion. However, the provisions of the AGG must be observed in particular. Prescribed selection criteria must be objectively justified and designed to be free of discrimination.

Social Selection under Sec. 1 para. 3 KSchG

In the case of redundancies for operational reasons, the employer must carry out what is known as a social selection—that is, a ‘selection’ among comparable employees. Relevant selection criteria include length of service, age, maintenance obligations, and severe disability. Incorrect selection decisions can render the termination unlawful.

Selection Decisions in Administrative Law

In administrative law, selection is particularly important in the award of public contracts and in merit-based selection in the public service.

Procurement Law: Selection among Bidders

Procurement law obliges public contracting authorities to conduct transparent, non-discriminatory, and competitive selection procedures. The legal framework for selection here consists of complex regulations in the GWB (Act against Restraints of Competition), the VgV (Public Procurement Ordinance), and relevant EU Directives.

Merit-Based Selection in Civil Service Law

According to Art. 33 para. 2 GG, the appointment of public offices requires a selection decision based on suitability, competence, and professional performance (‘merit-based selection’). Violations of this principle can be judicially reviewed through an action for competitors’ claims.

Selection Decisions in Data Protection Law

In data protection law, selection plays a decisive role in determining which personal data is collected, processed, or used. In particular, the choice of data recipients and selection in automated decision-making processes (Art. 22 GDPR) are regulated by law and are subject to strict requirements regarding transparency, necessity, and data subject rights.

Selection Procedures in Competition and Antitrust Law

In competition law, selection decisions regarding access to certain services, markets, or distribution channels may be subject to investigation. Abusive discrimination or unjustified rejection of potential contracting partners (‘selection’) can be considered market abuse or a violation of the anti-discrimination prohibition under Sections 19 and 20 GWB.

Legal Limits, Duties, and Controls in Selection

Prohibition of Discrimination and Principle of Equal Treatment

The principle of equal treatment and the prohibition of arbitrary or discriminatory selection decisions apply broadly to any legally relevant selection. Violations of statutory selection criteria may result in claims for damages, injunctive relief, or obligations for reversal.

Duties of Transparency and Documentation

In specific areas (e.g., procurement law, public service selection), there are extensive obligations to justify and document the selection decision. This serves the purposes of reviewability and legal remedies for affected applicants or companies.

Legal Remedies for Faulty Selection

Legal remedies such as lawsuits, objections, or requests for interim relief are regularly available to persons or companies affected by faulty, discriminatory, or arbitrary selection decisions. Judicial review generally covers compliance with selection criteria, transparency and documentation obligations, and non-discrimination.

Selection Procedures and Digitalization

With the progress of digitalization, automated selection decisions—for example, using algorithms or artificial intelligence—are becoming increasingly important. Legally, the requirements for transparency, traceability, legal protection, and freedom from discrimination are particularly relevant here (see Art. 22 GDPR).

International and European Law Aspects

International and European law contains various requirements for selection, such as in EU procurement directives, equal treatment regulations, and data protection law. National selection procedures must comply with the requirements of Union law, particularly regarding transparency, equal treatment, and effective legal protection.

Literature and Legal Sources

Key Legal Norms and Case Law

General Equal Treatment Act (AGG)
Civil Code (BGB)
Protection against Dismissal Act (KSchG)
Act against Restraints of Competition (GWB)
Public Procurement Ordinance (VgV)
Basic Law (GG), especially Art. 3, Art. 33
General Data Protection Regulation (GDPR), especially Art. 5, Art. 22
Decisions of the Federal Constitutional Court (BVerfG) on Equal Treatment and Merit-Based Selection

Summary

Selection, in a legal sense, describes the process of choosing within legally regulated procedures. The legal admissibility and design of such selection processes are largely influenced by anti-discrimination requirements, duties of transparency and documentation, specific selection criteria, and compliance with legal provisions such as the AGG, KSchG, GWB, and European regulations. Digitalization imposes new demands for transparency and traceability in selection processes. Violations of law in the area of selection can lead to comprehensive legal claims.

Frequently Asked Questions

What must be considered for the legally compliant design of a selection procedure?

When designing a legally compliant selection procedure, the requirements of the General Equal Treatment Act (AGG) must be observed in particular. Prohibitions of discrimination regarding religion, beliefs, disability, age, sexual identity, gender, and ethnic origin must be upheld; all selection steps and criteria must be objective, transparent, and documented to withstand possible judicial review. Job postings and selection interviews must be neutrally formulated, requirement profiles derived from actual tasks, and all applicants treated equally. Furthermore, a factual rejection of non-selected candidates should be ensured. Under works constitution law, the works council may need to be involved in the selection process in accordance with Sec. 99 BetrVG. The selection decision may also need to be justified under the Dismissal Protection Act (social selection, Sec. 1 para. 3 KSchG) or the Co-determination Act.

What are the legal consequences of an incorrect selection decision?

An incorrect selection decision can result in various legal consequences. If, for example, the AGG is violated, rejected applicants are entitled to compensation or damages under Sec. 15 AGG, with the right to damages existing regardless of whether the position was filled. In addition, failure to comply with the participation rights of the works council may constitute a violation of co-determination, possibly resulting in a judicial challenge to the personnel measure. In cases of internal selection (e.g., social selection in operational redundancies), the selection decision may lead to invalidity of the dismissal under Sec. 1 KSchG. Moreover, there is a risk of reputational damage and review by supervisory authorities, such as the Anti-Discrimination Agency.

What requirements does the AGG place on the selection interview?

The AGG requires that selection interviews be conducted without discrimination. Questions relating to characteristics protected by Sec. 1 AGG are inadmissible—this includes questions about pregnancy, religion, political affiliation, union membership, disability, and sexual identity. The conduct of the interview must be comparable for all candidates and follow identical criteria; subjective, unsubstantiated assessments may not be the sole basis for decisions. It is advisable to document the interview process and the underlying assessment criteria to withstand judicial review. Violations of these requirements may result in compensation claims by those affected.

How is the obligation to document the selection process regulated by law?

From a legal perspective, there is no general documentation obligation; however, it is strongly recommended—especially as a defense in the event of a dispute—to record the key selection criteria, the process, and the decisions made in a transparent manner. In a dispute with rejected candidates, the burden of proof under Sec. 22 AGG is on the potential employer to show that no discrimination has occurred. In social selection pursuant to the Protection against Dismissal Act, the selection decision must be justified, and the consideration of the relevant social factors must be documented in writing. The co-determination rights of the works council (Sec. 99 para. 1 BetrVG) may also require thorough documentation of the selection process.

What role do works council co-determination rights play in personnel selection?

The rights of the works council are regulated in the Works Constitution Act, particularly in Sec. 99 BetrVG. Before any individual personnel measure such as recruitment, classification, reclassification, or transfer, the works council must be involved. The employer must inform the committee about the candidate selection with sufficient documentation; the works council may withhold consent if it detects a disadvantage, regulations have been violated, or if, for instance, an insufficient selection among several candidates (‘most suitable applicant’) was made. If participation is omitted or incomplete, the personnel measure may be invalid.

How long may applicant data from the selection procedure be stored?

Personal data of applicants may, according to Art. 17 GDPR as well as the principles of purpose limitation and data minimization, only be stored as long as necessary for the selection procedure and to defend against possible claims. After the selection process concludes, a deletion period of no more than six months is recommended (see Secs. 15, 21 AGG), as claims of discrimination can be asserted within this period. In well-founded exceptional cases—such as consent to be stored in a talent pool—longer retention is possible, but requires express consent of the data subject.

What judicial review options exist for the selection procedure?

Rejected applicants can have the selection decision reviewed by labor courts for possible discrimination (AGG). In operational selection decisions, such as social selection in case of dismissal due to operational reasons, judicial review is provided under the Protection against Dismissal Act. Violations of the works council’s co-determination rights can also be asserted in labor court. Courts particularly review whether all legal requirements have been observed, especially documentation, information, and equal treatment obligations, and whether the decision is based on objective, verifiable grounds.