Landesarbeitsgericht Düsseldorf; 2022-07-01; 10 Sa 975/21
Decision by national courts in the field of European Union law — ECLI:DE:LAGD:2022:0701.10SA975.21.00
Date: 2022-07-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0701(51)_ENG_SUMJURE
JURE summary
JURE summary
A flight attendant residing in Germany (hereinafter ‘the plaintiff’) filed a claim against her former employer, an Austrian flight service company (hereinafter ‘defendant 1’), and her subsequent employer, a newly founded airline (hereinafter ‘defendant 2’), for the transfer of her employment relationship with defendant 1 to defendant 2 and for the invalidity of ordinary terminations for operational reasons by both defendants.
As a result of the Covid-19 pandemic, defendant 1 also suspended air traffic at the German site where the plaintiff was stationed. Later that year, in October 2020, the plaintiff’s base was completely shut down, resulting in the loss of her job. In August 2020, defendant 2 offered the plaintiff employment as a senior flight attendant from 15 September on the same terms as she had with defendant 1. The plaintiff accepted the offer. One day later than defendant 1, on 10 September 2020, defendant 2 notified the Düsseldorf Employment Agency of an intended collective redundancy. The Düsseldorf district government declared the plaintiff’s termination by defendant 1 to be admissible, and the plaintiff was dismissed with effect from 15 April 2021. The Düsseldorf district government also declared the admissibility of the plaintiff’s dismissal by defendant 2. This time, her contract was terminated with effect from 31 May 2021.
The plaintiff claimed that both notices of termination were invalid. The plaintiff was of the opinion that the defendants had violated the prohibition of termination. Furthermore, she claimed that there had not been a shut down of operations by defendant 1, but a transfer of operations to defendant 2, which continued the wet lease operations of defendant 1.
The Arbeitsgericht Düsseldorf (hereinafter ‘the Court of First Instance’), seised pursuant to Article 20(1), Article 21(1), point (b), and Article 66(1) of the Brussels I Regulation (recast) (1), dismissed the actions against both defendants.
The Landesarbeitsgericht Düsseldorf (hereinafter ‘the Court of Appeal’) dismissed the plaintiff’s appeal against both judgments of the Court of First Instance as unfounded by a joint hearing following a decision.
The decisions of the Court of First Instance were upheld. Defendant 1 terminated the employment relationship with the plaintiff with legal effect. Contrary to the plaintiff’s view, the termination was not socially unjustified in the sense of Article 1(1), (2) and (3) of the KSchG (2). Urgent operational requirements existed due to the shutdown of the plaintiff’s site. There was no need to carry out a socially-justified selection, as all employees working in Germany were made redundant. According to the applicable case law, socially-justified selection only applies to companies located in Germany.
As the Court of First Instance assumed without error of law, defendant 2 did not take over the business of defendant 2, whether in entirety or in parts. A transfer of business is deemed to have taken place in accordance with Article 613a(1), sentence 1, of the BGB (3) and within the meaning of Directive 2001/23/EC (4) if a new legal person continues an economic entity existing with the former owner for the purpose of pursuing a main or secondary economic activity while retaining its identity. That is not the case here. Defendant 2 took over several locations of defendant 1 in several European countries, some of them with the intention of partially operating them in the future. However, this did not affect the plaintiff’s location, which was ultimately shut down completely, or any other locations in Germany. According to recent case law, the mere possibility of the continuation of the business is not sufficient for the assumption of a transfer of the entire business. Such an activity must actually be carried out. Therefore, defendant 2 did not violate the KSchG. A socially-justified selection was not needed to be carried out. All employees in Germany were made redundant.
The Court of Appeal dismissed both of the plaintiff’s appeals against the judgements of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Kündigungsschutzgesetz (Termination Protection Act).
(3) Bürgerliches Gesetzbuch (German Civil Code).
(4) Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.