Terminating employment without complying with the German written form requirement – no problem?

The notice of termination regarding a German employment relationship must be issued in writing. Until now, this formal requirement has generally been seen as absolute. However, as is often the case, “no rule without an exception”. In certain specific situations, it is possible to terminate a German employment relationship without complying with the German written form requirement. This article outlines the possibilities and limitations for deviating from the German written form requirement.

The Problem

According to Section 623 of the German Civil Code (Bürgerliches Gesetzbuch ‒ BGB), the termination of a German employment relationship generally requires written form. This means that (i) the person entitled to terminate must sign the notice of termination by hand, i.e. “wet ink” signature, and (ii) the wet ink-signed notice of termination must be received by the other party in its original form. This requirement can pose particular problems in cross-border employment relationships, for example, where a foreign company employs employees in Germany but the management, as the body authorised to terminate employment relationships, is based abroad, or where the management of a German company is permanently or even temporarily (e.g. on holiday) abroad. To comply with the formal requirement under Section 623 of the German Civil Code, the notice of termination must be signed wet ink abroad and then sent as a wet ink-signed original to Germany (which is cumbersome and time-consuming) in order for it to be validly served to the employee. This can become costly for a company, especially if, due to the resulting delay, the next possible termination date cannot be complied with, causing the notice period to be extended, or even preventing the termination from taking place during a probationary or waiting period or within the two-week period under Section 626(2) of the German Civil Code.

The Solution

In cross-border employment relationships, the applicable law is determined according to the conflict of laws rule in Article 8 of the Rome I Regulation (for employment relationships concluded before 17^th December 2009, Article 30 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch ‒ EGBGB) applies). As a general rule, this conflict of laws provision leads to German employment law being applicable to employment relationships where the employee works in Germany. However, Article 11(3) of the Rome I Regulation contains a special provision regarding formal requirements for the termination of employment relationships (for employment relationships concluded before 17^th December 2009, Article 11 of the Introductory Act to the German Civil Code applies).

Article 11(3) of the Rome I Regulation contains three options for a notice of termination to be formally valid. Of particular interest is the second option: a notice of termination is formally valid if it satisfies the formal requirements of the law of the country where the notice of termination is submitted, even if another country’s law otherwise applies to the employment relationship. This option is also found in Article 11 of the Introductory Act to the German Civil Code. A notice of termination is submitted at the place where it is sent from. This means that if the management is permanently or temporarily (e.g. on holiday) abroad and it sends a notice of termination to a German employee from there, it does not necessarily have to comply with the German written form requirement of Section 623 of the German Civil Code. Section 623 of the German Civil Code is also not a mandatory overriding provision within the meaning of Article 9 of the Rome I Regulation (for employment contracts concluded before 17^th December 2009, Article 34 of the Introductory Act to the German Civil Code applies), which would always apply regardless of the law determined to be applicable. Therefore, it is sufficient if management observes the formal requirements for the notice of termination of the country in which it is located. This will often mean that notice of termination by email or a notice of termination sent by email with a scanned signature is sufficient as only few countries have a strict written form requirement like Germany’s Section 623 of the German Civil Code. For example, in a recent decision dated 22^nd August 2024, the German Federal Labour Court (Bundesarbeitsgericht ‒ BAG) found that the notice of termination by a US company to a German employee was formally valid despite lacking a signature. The management had sent the notice of termination from Chicago and the applicable local law contained no formal requirements for employment terminations  (German Federal Labour Court, 22^nd August 2024 – 2 AZR 251/23, para. 57; confirmed by German Federal Labour Court, 18^th June 2025 - 2 AZR 96/24 (B), paras. 24 et seq.).

The Limitations

If a company wants to issue a notice of termination under Article 11(3) of the Rome I Regulation (Article 11 of the Introductory Act to the German Civil Code) without complying with the (German) written form requirement under Section 623 of the German Civil Code, it must observe the following limitations:

1. Firstly, the company should always check which formal requirements the country in which the person entitled to terminate employment relationships is located specifically prescribes for employment terminations. The company must comply with this form when issuing the notice of termination.
2. Furthermore, the company should document in a clear and verifiable manner (i) which person issued the notice of termination (ii) at what time (iii) from which location and (iv) in what manner it was sent.
3. The German Transparency Act (Nachweisgesetz ‒ NachwG) obliges companies to provide their employees with a written record of the essential terms of their employment. Under Section 2(1), sentence 7, no. 14 of the German Transparency Act, these essential terms include the requirement that a notice of termination must be in written form. Consequently, many German employment contracts specify that any notice of termination must comply with the written form prescribed by Section 623 of the German Civil Code. Where such a clause exists, the company is bound by Section 623 of the German Civil Code, even if the notice of termination is sent from abroad. If a company wants to meet its obligations under the German Transparency Act without necessarily being bound by the strict (German) written form of Section 623 of the German Civil Code, the relevant clause in the employment contract can be worded as follows: “Notice of termination requires the written form pursuant to Section 623 of the German Civil Code but only to the extent that the application of this Section is mandatory under the relevant conflict of laws rules.” Alternatively, the company can also fulfil its obligations under the German Transparency Act by providing a separate document, clearly distinguishable from the employment contract, expressly formulated as a mere statement of knowledge and thus without any legally binding effect for the company.
4. Furthermore, the general prohibition on abuse of rights must be observed. Such an abuse of rights may arise in particular where the person entitled to terminate employment relationships travels abroad with the sole intention of sending a notice of termination from there and thus taking advantage of the more liberal formal requirements that apply abroad compared to Germany. Due to the circumvention of Section 623 of the German Civil Code, such a notice of termination is likely to be formally invalid. However, there is no relevant case law as to when such an abuse of rights can be assumed. For this reason, as a precaution, companies should always, in addition to sending a “deadline-preserving” notice of termination from abroad that does not comply with the German written form requirement of Section 623 of the German Civil Code, also send a subsequent wet ink-signed notice of termination that fully complies with Section 623 of the German Civil Code.
5. It should also be noted: The three-week period for taking legal action pursuant to Section 4 of the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz – KSchG) only applies if the employee has received a written notice of termination within the meaning of Section 623 of the German Civil Code. Therefore: If the employee does not receive a written notice of termination within the meaning of Section 623 of the German Civil Code, there is no legal certainty for the company that the employee can no longer take legal action against the termination after the expiry of three weeks following receipt of the notice of termination (Section 7 of the German Protection Against Unfair Dismissal Act). This legal certainty only exists upon receipt of a written notice of termination pursuant to Section 623 of the German Civil Code. Against this background, too, the company should issue a "precautionary" written notice of termination within the meaning of Section 623 of the German Civil Code in addition to the “deadline-preserving” notice of termination from abroad which does not comply with the written form requirement of Section 623 of the German Civil Code. However, if there is no “precautionary” written notice of termination within the meaning of Section 623 of the German Civil Code, the employee can take legal action against the notice of termination up to the limit of forfeiture.
6. Finally, a company must also observe Section 174 of the German Civil Code. Under this provision, an employee may immediately reject a notice of termination if the person issuing the notice of termination does not present an original power of attorney confirming their authority to issue the notice of termination. However, a power of attorney is not required if the authority to terminate is evident from obvious circumstances, such as the person being listed in the (German) commercial register as an authorised company representative. Section 174 of the German Civil Code is therefore only relevant when the person issuing the notice of termination is not registered in the (German) commercial register as authorised to represent the company. If the person issuing the notice is not registered in the (German) commercial register, the notice of termination must be accompanied by an original, wet ink-signed power of attorney from the person who is registered in the (German) commercial register as authorised to represent the company. Otherwise, the employee may reject the notice of termination. In such a case, issuing a notice of termination without complying with the strict German written form requirement under Section 623 of the German Civil Code offers no practical advantage as the wet ink-signed power of attorney (i.e. the authority to terminate) must still be attached to the notice of termination.

Conclusion

Article 11(3) of the Rome I Regulation (Article 11 of the Introductory Act to the German Civil Code) allows to terminate a German employment relationship without complying with the strict German written form pursuant to Section 623 of the German Civil Code, provided the notice of termination is sent from abroad. In practice, this approach is particularly relevant for companies when management is located abroad and there is a need for urgent action. However, a company should assess in each individual case whether it can in fact deviate from the strict German written form of Section 623 of the German Civil Code. If the company decides to proceed with a notice of termination without complying with the German written form requirement of Section 623 of the German Civil Code, it should document the relevant circumstances in a clear and verifiable manner.

Alternatively, a company can keep enough original, wet ink-signed powers of attorney from management ready for issuing notices of termination in Germany. This way, persons who are not listed in the (German) commercial register can still be verifiably authorised to sign and send notices of termination. As a result, there is no risk that the notice of termination will be rejected under Section 174 of the German Civil Code.