Pursuant to a judgement of the German Federal Employment Law Court as of 24 August 2016, a clause of forfeiture, which does not exclude an applicable minimum wage pursuant to the German regulation on Employee Posting (Arbeitnehmerentsendegesetz – AEntG), is invalid. It is not possible to waive the minimum wage pursuant to Sec. 9 of the German regulation on Employee Posting. Therefore, a general clause of forfeiture without any respective limitation is invalid. It is also not possible to “reduce” such an invalid clause to its legally valid content due to reasons of transparency.
Please note that it is also not possible to waive the minimum wage pursuant to Sec. 3 of the German Act on Minimum Wages. Therefore, the judgement as above, will also apply with respect to the general minimum wage in Germany.