In Germany, a betriebliche Übung ('established company practice') arises when an employer grants a benefit such as a bonus or holiday pay repeatedly and without reservation. As a rule of thumb, the Federal Labour Court (Bundesarbeitsgericht) treats three consecutive, unconditional grants as enough: the benefit becomes part of the employment contract and can no longer be withdrawn unilaterally. You prevent this with a clear discretionary reservation (Freiwilligkeitsvorbehalt) each time you grant it.
At a glance
- BAG rule of thumb: three unconditional grants create a claim, so for annual payments the entitlement arises from the fourth year
- No statute; judge-made law from §§ 133, 157, 242 BGB
- Once it exists, the claim becomes contractual: no unilateral withdrawal, and no "negative betriebliche Übung"
- It concerns benefits to the workforce or an identifiable group, not individual one-off promises
FAQ
How do you stop an entitlement from arising?
With a clear discretionary reservation (Freiwilligkeitsvorbehalt) at each grant. A blanket clause in the contract is often not enough for the BAG, especially if it is unclear or combined with a revocation reservation.
Does the three-year rule always apply?
No. It is a rule of thumb for annual special payments. For other benefits the overall circumstances decide; a practice can arise earlier or later.
Can a betriebliche Übung be reversed?
Not unilaterally. The claim is part of the contract and can only be removed by an amendment agreement or a dismissal to change terms, both with high hurdles.
Last updated: August 2026
This article provides general information and is not a substitute for legal advice in individual cases.
Jonas Stoffel
