LAG Köln - 6 SLa 116/26

The plaintiff resides in L (O). Having completed training as an industrial clerk and earned a Bachelor 3 of Laws degree, he is currently unemployed. He is recognized as a person with a severe disability with a GdB of 50. The plaintiff is the same person as the plaintiff and appellant in the appeal proceedings before the Federal Labor Court dated September 19, 2024—Case No. 8 AZR 21/24. Those appeal proceedings concerned a judgement of the Hamm Regional Labor Court dated December 5, 2023—6 Sa 896/23—which had dismissed the plaintiff’s lawsuit for compensation in connection with a job application from 2021. The 8th Senate of the Federal Labor Court, in its decision of September 19, 2024, held that the Regional Labor Court’s assessment that the plaintiff was abusing the law with his lawsuit for compensation is reviewable in the appeal-on-point instance only whether the Regional Labor Court misinterpreted the legal concept itself, violated the laws of logic, recognized principles of interpretation, or general rules of experience, or failed to take material circumstances into account.

In this regard, he alleged that on January 26, 2025, he had applied via classified ads and in writing by email for a full-time position for a “secretary” advertised by the defendant—which did not include the designation “(m/f/d)”— enclosing a cover letter dated January 26, 2025, a resume, a employment reference from Bu Kunststoffwerk GmbH dated March 31, 2020, his vocational school diploma dated July 23, 2015, and a certificate of continuing education. On January 27, 2025, he received a confirmation of receipt from the defendant. It can therefore be assumed that his application reached the defendant. The failure to consider his application was attributable to discrimination based on his gender. Had his application been successful, he could have expected an average gross monthly salary of 3,500.00 EUR. At the conciliation hearing before the Cologne Labor Court on October 14, 2025, the plaintiff, who had been duly summoned, plaintiff, who had been duly summoned, did not appear, so that, at the request of the managing director of the defendant, who appeared at the hearing, a first default judgment dismissing the lawsuit was rendered against him.

The plaintiff filed an appeal on February 13, 2026, against this judgement, which was served on him on February 27, 2026, and submitted the grounds for the appeal on March 15, 2026. In support of his lawsuit, the plaintiff argues that he was discriminated against in the application process 23 . This is evidenced by two factors. The first factor is the fact that, according to the wording of the job posting in the classified ads, only a woman was being sought. The second piece of circumstantial evidence is the fact that the defendant failed to fulfill its obligation under § 164(1), second para, of SGB IX. Based on these two pieces of circumstantial evidence, § 22 of the AGG gives rise to a presumption of discrimination on the basis of sex and severe disability. The defendant has not rebutted this presumption; rather, it has failed to present any arguments regarding the specific case. The objection of abuse of rights does not preclude his resulting claim for compensation under § 15(2) AGG.

This is because he is genuinely interested in the advertised position and is fully prepared to leave his hometown. His place of residence is in a structurally disadvantaged area, and he therefore assumes that there is only a slim chance of finding employment there or in the vicinity. He is therefore prepared at any time to relocate his primary residence. The quality of his application materials is, in his view, not as poor as the Labor Court assumed. In his view, it should be taken into account that this case concerns only the position of an assistant, that he himself is not a fully qualified lawyer, and that any actual “gaps” in his resume, if he were being truthful, would also have to be reflected in the written CV. The decisions of the Hamm Regional Labor Court and the Federal Labor Court cited by the Labor Court had concerned a single application process. Four years have since passed since that process.

The defendant did not submit any statements in the appellate proceedings and did not appear at the hearing 31 before the appellate chamber on June 25, 2026. The defendant did not even announce any motion. The plaintiff’s notice of appeal had been served on the defendant on February 21, 2026 (pp. 22–32 of the appeal file). The same was done with a notice to the defendant that representation by counsel is mandatory before the State Labor Court. The summons, issued by order of March 27, 2026, for the hearing before the Appeals Chamber on June 25, 2026, was served on the defendant on April 1, 2026 (p. 77 of the record). This, too, was accompanied by a notice regarding the requirement of representation. For further details regarding the facts and the dispute, reference is made to the 33 briefs exchanged, together with their attachments, as well as the transcripts of the hearings. Reasons for the Decision 34 The plaintiff’s admissible appeal is partially successful. 35 I. The plaintiff’s appeal is admissible because it is permissible (Section 64(1) and (2) of the Labor Court Act (ArbGG)) and has been 36- lodged and substantiated in a timely and proper manner (Sections 66(1), 64(6), para 1, ArbGG, 519, 520 ZPO).

By way of a first default judgment, the judgement at issue rendered by the 38th Cologne Labor Court—which had upheld the default judgment dismissing the claim dated October 14, 2025— was partially modified, the aforementioned default judgment dismissing the claim judgment in default was partially set aside, and the defendant was ordered to pay the plaintiff compensation pursuant to para 15(2) AGG in the amount of 2,000.00 EUR plus interest . This is because the defendant was in default (a.) and the plaintiff’s appellate arguments were conclusive to the extent of the modification (b). a. At the hearing before the appellate division on June 25, 2026, the defendant was 39 in default through its own fault. It had previously been duly and timely summoned to the hearing, and it had also received, on two occasions, written notice of the requirement to be represented by counsel before the Appellate Court. b. The plaintiff’s appeal brief, in which he challenges the Labor Court’s judgement of January 22, 2025, which dismissed the lawsuit in its entirety 40, is conclusive to the extent that it seeks the (in effect, only partial) reversal of the default judgment rendered by the Labor Court following the conciliation hearing and demands that the defendant be ordered to pay compensation pursuant to para 15(2) AGG.

The plaintiff’s well-reasoned appellate arguments justify compensation in the amount of EUR 2,000.00. Pursuant to § 64(7) ArbGG in conjunction with § 539 ZPO, the provisions governing a 41 default judgment in appellate proceedings are similar to those under §§ 330, 331 of the Civil Procedure Code (ZPO). If the respondent fails to appear, the appellant’s appellate arguments must justify his claims on appeal. In this context, the appellant’s most recent submission must be treated as admitted, even if it does not correspond to the factual submissions made at the first instance. To the extent that these submissions justify the appeal, a decision must be rendered in accordance with the appeal, pursuant to § 539(2), sentence 2, ZPO. Circumstances Circumstances that might indicate the inaccuracy of the appellant’s arguments are disregarded (Federal Labor Court [BAG] decision of August 18, 2004—5 AZR 623/03-).

According to the aforementioned case law of the Federal Labor Court, this principle extends so far that even evidence taken in the first instance must be disregarded. If, on the other hand, the arguments presented on appeal regarding the requests made in the appeal are inconclusive (as under § 331 ZPO), then the appeal must be dismissed by means of a so-called “quasi-default judgment,” that is, as a final judgment on the merits, . According to the plaintiff’s submission, the requirements of Section 15(2) of the AGG are met (1.) 42, and the defense of abuse does not preclude the claim in the specific case at hand (2.). A compensation amount of EUR 2,000.00 is reasonable within the meaning of the provision (3). (1.) The requirements of Section 15(2) of the AGG—namely, a violation of the 43 prohibition against discrimination and causal damage that is not financial in nature—are substantively met.

According to the plaintiff’s appeal brief—which, as shown, must be treated as admitted due to the defendant’s failure to respond 44 —the facts of the case may be summarized as follows: The plaintiff applied to the defendant for a vacant position; in his application letter, the plaintiff indicated his severe disability; the defendant had previously advertised the vacant position in classified ads as a position for a “secretary” prior to advertising the position, the defendant did not inform the Federal Employment Agency in accordance with § 164(1), second para, of SGB IX; although the plaintiff received an acknowledgment of receipt via email from the defendant regarding his application, he has heard nothing further from her. The wording of the job posting and the defendant’s failure to comply with the obligation under § 164 45 (1), second sentence, of SGB IX, there are two pieces of circumstantial evidence that give rise to a presumption of discrimination on a ground specified in § 1 of the AGG.

Accordingly, pursuant to § 22 of the AGG, the other party bears the burden of presenting evidence and proving that there was no violation of the provisions regarding protection against discrimination did not occur. The “other party” in this case is the defendant. She failed to appear at the hearing before the appeals chamber and therefore did not meet the aforementioned burden of presentation. It must therefore be assumed that there has been a violation of the prohibition against discrimination under § 7 AGG. The occurrence of causal damage that is not financial loss is presumed upon the 46 finding of discrimination pursuant to the case law of the 8th Senate; it can be presumed here in particular due to the defendant’s failure to appear. For the compensation to be granted under § 15(2) AGG, the Federal Labor Court, in accordance with its conceptual approach—which characterizes § 15(2) AGG as an independent basis for a claim— no further prerequisites.

Thus, in addition to the violation of the prohibition against discrimination, the compensation requires neither a specific “degradation” of the employee, nor is the existence of non-pecuniary damage required or must be separately demonstrated (BAG, Jan. 22, 2009 – 8AZR 906/07 – para. 70 et seq.; BAG, March 18, 2010 – 8AZR 1044/08 – para. 37; MHdB ArbR/Oetker, 6th ed. 2024, §17, beck-online; dissenting opinion: BeckOGK/Benecke, Sept. 1, 2023, AGG §15 para. 51; MüKoBGB/Thüsing AGG §15, para. 9). Nor is it necessary to make a specific finding that the employee’s right of personality has been violated as a result of the discrimination or that a minimum threshold has been exceeded. Only when determining the specific amount of compensation, as part of a comprehensive assessment of all circumstances of the individual case, must the severity of the infringement also be taken into account (ErfK/Schlachter AGG § 15, para. 9), which—just as in cases under §253(2) BGB—may, in particularly exceptional circumstances—may even result in the compensation being set “at zero” (MHdB ArbR/Oetker, 6th ed. 2024, § 17, para. 71).

The plaintiff therefore has a substantive claim against the defendant for payment of 47 compensation under § 15(2) AGG. (2.) This claim under § 15(2) AGG is not precluded by the defense of abuse of rights in the 48 specific case. It is true that the defense of abuse of rights under § 242 BGB is in fact a defense in the procedural sense that must be taken into account “ex officio.” However, the facts underlying the defense must form part of the evidence relevant to the decision. This is not the case here—at least not with the necessary completeness. Since the defendant has not presented any facts in support of the defense of abuse of rights, it must be assumed, as a starting point, The plaintiff’s account that the application at issue was made in earnest, that he was prepared to relocate for the proposed employment relationship, change of residence for the proposed employment relationship, that the quality of the application documents corresponds to his intellectual level and he did not deliberately design the documents to appear unprofessional, that he is not committing an abuse of rights, and that he does not intend to do so.

The Labor Court correctly and substantively points out the legal fact that, with regard to the issue of abuse, this constitutes an objection and not a defense. Consequently, the approach that the objection of abuse does not have to be expressly raised—i.e., asserted—is also accurate; thus, the Court must examine it even in the absence of the party in whose favor a finding of abuse would operate (aa). In the present lawsuit, the plaintiff himself has indeed presented some facts that, in principle, could justify an examination of the objection of abuse. Contrary to the view of the Labor Court, however, this examination in the specific case at issue here does not lead to the exclusion of the right to claim compensation under § 15(2) AGG (bb). aa. In procedural law, the substantive distinction between objections and defenses is of great importance, particularly in cases of default such as the present one.

Objections are facts or legal grounds that prevent the creation or existence of the claim from the outset or extinguish it later, e.g., legal incapacity (§ 104 BGB), subsequent impossibility (§ 275 BGB), or performance (§ 362 BGB); as a general rule, the Court must take them into account “ex officio,” i.e., without a separate request. Defenses, on the other hand, establish a right to refuse performance that must be expressly asserted by the debtor, such as the statute of limitations (Section 214 of the German Civil Code (BGB)) or the right of retention (Section 273 of the German Civil Code (BGB)). In both cases—including the first type of objection mentioned—the underlying facts must have been presented during the proceedings—by whomever—in order to become part of the facts of the case. If the defendant fails to appear at the hearing, a defense in its favor cannot be considered for that reason alone, because it cannot “raise a defense” in its absence.

This applies even if the fact that could entitle it to a defense—for example, the statute of limitations—is presented by the In the lawsuit, the plaintiff himself presents facts from which it follows, for example, that he lacks legal capacity, that performance is impossible, or that performance, these facts must be taken into account “ex officio.” They do not need to be separately “raised” as a defense. Among these objections is the objection of abuse of rights. An entirely different issue is the burden of presentation and proof raised in the lawsuit. The 51 burden of presentation, which follows the burden of proof, is the decision maker, determining who loses the case if they do not present the facts truthfully and/or completely enough, facts that constitute the prerequisites for the provision in their favor or that they cannot prove them in the event of a dispute. Section 138(2) of the German Code of Civil Procedure (ZPO) establishes the obligation of the opposing party to address the other party’s statement of facts in accordance with the standards set forth in Section 138(1) ZPO.

It follows from this that the presentation of facts to support a desired legal consequence—regardless of whether it concerns a prerequisite for the basis of a claim, a defense, or a plea—must be all the more specific the more specifically it is disputed. However, if a party is “not present” because it is culpably absent from the hearing, it cannot contest anything, whether specifically or in general. bb. According to these guidelines, in the specific case at hand, by the date of the oral 52 hearing before the appellate chamber, there were not enough facts pertaining to the subject matter of the lawsuit to assume that the plaintiff’s claim for compensation could not have arisen in the first place due to the (barring) defense of abuse of rights. The distance between the plaintiff’s place of residence and the proposed workplace is, in principle, 53 irrelevant to the determination of an abuse of rights (BAG, May 19, 2016, - 8 AZR 583/14—para. 66; BAG, Aug. 11, 2016—8 AZR 809/14—para. 39).

The quality of the application documents is generally not a suitable indicator of an abuse of rights (BAG, Jan. 26, 2017 – 8 AZR 848/13 – para. 136). The fact that the LAG Hamm (Hamm Regional Labor Court Dec. 5, 2023—6 Sa 896/23—) recognized, with regard to the plaintiff’s conduct surrounding a job application in 2021, that filing a lawsuit seeking compensation constituted an abuse of rights and a “second-generation business model,” and that this decision has since become final, are sufficient grounds to carefully examine the defense of abuse of rights in the present action for compensation that is the subject of the dispute. In the absence of a valid submission by the defaulting defendant, however, the plaintiff’s assertion that, at least in this instance, there is no abuse of rights must be deemed undisputed. Furthermore, the mere fact of a large number of identical job applications is, in and of itself, generally not sufficient to establish an abuse of rights (BAG, Aug. 11, 2016—8 AZR 809/14—para. 43).Thus, the defendant remains under its fundamental obligation, pursuant to § 15 54 (2) AGG, to pay the plaintiff “reasonable monetary compensation.”

(3.) In the present case, compensation in the amount of 2,000.00 EUR 55 is appropriate. Contrary to the plaintiff’s assertion, there is no such thing as “standard compensation,” and certainly not in the amount of 1.5 months’ salary. While accuracy in the calculation of compensation for discrimination in the hiring process. The cap specified in §15(2) AGG might at first glance support this. However, the wording of §15(2), para 1, of the AGG obscures the relevant criteria for assessing compensation (on this point and the following: MHdB ArbR/Oetker, 6th ed. 2024, §17, para. 72, beck-online). According to the relevant provisions of the Equal Treatment Directives, the sanctions established by the Member States need not be “reasonable,” but rather “effective, proportionate, and dissuasive.” Under the required interpretation in accordance with the directive, compensation is therefore “reasonable” within the meaning of §15 (2) AGG only if its amount is determined in such a way that the compensation has a deterrent effect without being disproportionate to the harm suffered.

This means on the one hand that purely symbolic compensation cannot meet these requirements and it is therefore not unreasonable to consider the amount of the proposed gross monthly salary as a benchmark; after all, the discriminating employer’s objective is to establish an employment relationship in order to generate a profit from the added value of the work. “Effectiveness,” “proportionality,” and “deterrence” thus begin with the amount by which the discriminating employer is tangibly prevented from realizing this added value. However, with regard to the interests of the applicant, it should be noted that there is no apparent factual connection between the non-pecuniary damage suffered on the one hand and the lost monthly earnings on the other. Why compensation for non-pecuniary damage should increase proportionally with the amount of compensation is not apparent, at least not in light of the compensatory function of the compensation.

Furthermore, the amount of compensation depends on the circumstances of the individual case. The 8th Senate has expressed what this means in several decisions in virtually identical and repetitive terms (see BAG, Aug. 11, 2016 – 8AZR 4/15 – para. 107 with further references): When assessing the appropriate amount of compensation to be awarded, all circumstances of the individual case must be taken into account, such as the nature and severity of the disadvantage, its duration and consequences, the cause and motive of the conduct, and the punitive purpose of the compensation provision. The compensation must ensure actual and effective legal protection. The severity of the sanctions must correspond to the gravity of the violation by ensuring, in particular, a truly deterrent effect on the employer while at the same time upholding the general principle of proportionality. Since para 15(2), sentence 1, of the AGG places the amount of compensation within the court’s discretion by using the term “reasonable,” leaves the amount of compensation to the Court’s discretion, it also grants the Court a margin of discretion, such that it is sufficient for the employee, when asserting a claim in court, to file a lawsuit for payment without specifying an amount.

However, this freedom does not relieve the plaintiff of the obligation to identify the facts relevant to the assessment of compensation or to indicate the approximate amount of compensation in the statement of lawsuit. 57The adjudicating chamber was required here, based on the content of the lawsuit—which follows the basis of the lawsuit—to determine the amount of compensation according to the facts presented by the plaintiff and which, due to the defendant’s failure to appear, were to be regarded as admitted. The amount requested by the plaintiff is not a fact in this sense. In the present case, the plaintiff stated, for the purpose of determining the amount of compensation, that in his opinion, a monthly salary of 3,500.00 EUR. Based on “standard compensation” amounting to 1.5 times the gross monthly salary, an increase in the standard compensation should be assumed in this case due to not only simple (gender) but twofold (gender and severe disability), an increase in the standard compensation should be assumed, namely to an amount corresponding to twice the stated gross monthly salary.

On this basis, compensation in the amount of 1,000.00 EUR each 58 is warranted for the discrimination based on gender and for the discrimination based on severe disability. As demonstrated, while the amount of the gross monthly salary must be used to determine the 59 cap, it is not suitable as a basis for determining the amount to be set. With regard to the balancing criteria identified by the Federal Labor Court—“nature and severity of the discrimination,” “motive for the action,” and “degree of the employer’s responsibility”—the plaintiff has not presented any facts. The adjudicating chamber took into account here that the plaintiff did not even allege that the position in question had in fact been filled. The plaintiff’s allegations amounted to nothing more than a reference to a job posting that was not gender-neutral and the failure to report the open position to the Federal Employment Agency, without any assertion that a woman who was not severely disabled had in fact been hired instead of the plaintiff.

However, this does not justify setting the compensation at “zero,” especially not for a defendant who, by failing to act on two occasions, gives the impression that it disregards procedures such as this one, and certainly not 20 years after the enactment of the AGG for a defendant who is unwilling to meet the minimum requirements for a gender-neutral job posting or who, at the very least, holds the excusable but legally erroneous belief that she is permitted to disregard the statutory requirements. As demonstrated, it is required not only by the wording of the law, not only by the established case law of the Federal Labor Court, but also under European law to set compensation that guarantees “actual and effective legal protection.” The severity of the sanction must correspond to the gravity of the violation, must ensure a deterrent effect, and must at the same time uphold the general principle of proportionality.

This requires the application of an objective standard (Federal Labor Court [BAG] July 25, 2024 - 8AZR 225/23 - para. 33; Federal Labor Court [BAG] June 20, 2024 - 8AZR 124/23 - para. 15). It should be noted that an objective standard is distinct from “objective harm.” The more serious the consequences of a violation of the General Data Protection Regulation are, the more likely there is a reasonable fear of data misuse. A mere delay in providing information does not, in and of itself—at least according to the case law of the Federal Social Court (BSG)—constitute a loss of control over data in the sense of a risk of misuse, but only a delay in providing the information (BSG, Sept. 24, 2024—B7 AS 15/23R—para. 32). The catchphrases “loss of control” and 71 “degradation to a mere object of data collection” cited by the plaintiff in the present lawsuit do not, according to this standard, constitute damage.

A departure from the case law of another state labor court—specifically, the decision of the 12th Chamber of the Düsseldorf State Labor Court (LAG Düsseldorf, April 10, 2024—12 Sa 1007/23)—does not exist in light of the foregoing. III. In light of the foregoing, the defendant was to be ordered by a partial default judgment to pay the plaintiff 75 2,000.00 EUR in compensation pursuant to § 15(2) AGG, and, for the remainder, to dismiss the plaintiff’s lawsuit in a final decision, i.e., to dismiss his appeal . The decision on costs is based on § 92 ZPO. An objection may be filed against the aforementioned default judgment; however, no appeal is available against the portion of this decision dismissing the plaintiff’s claim or dismissing the appeal. There are no grounds for granting leave to appeal, as the decision is based on the circumstances of this specific case.