ArbG Düsseldorf; 2021-03-09; 5 Ca 5833/20
Decision by national courts in the field of European Union law — ECLI:DE:ARBGD:2021:0309.5CA5833.20.00
Date: 2021-03-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0309(51)_ENG_SUMJURE
JURE summary
JURE summary
An aircraft captain (hereinafter ‘the plaintiff’), who was stationed in Düsseldorf, Germany, filed a claim against his original employer, an Austrian flight services company (hereinafter ‘defendant 1’), and his subsequent employer, a newly established airline from Malta (hereinafter ‘defendant 2’), regarding the validity of dismissals for operational reasons by both defendants.
On 3 July 2020, defendant 1 sent to the plaintiff a key issues paper for pilots stationed in Germany, signed by the company alone, which stated, among other things, that it would apply German labour law to all its pilots employed in Germany from 1 July 2020. The plaintiff agreed to the key issues paper. At the end of June 2020, defendant 1 decided to close all of its flight operations in Germany, including the plaintiff’s base in Düsseldorf.
In August 2020, defendant 2 offered the plaintiff employment as a captain at its Düsseldorf base from 15 September on the same terms as he had at defendant 1. The plaintiff accepted this offer. On 9 September, defendant 2 decided not to commence flight operations from German airports and not to open a location in Düsseldorf. Both defendants terminated the plaintiff’s employment relationship as part of a collective redundancy authorised by the Düsseldorf Employment Agency.
The plaintiff believed that both notices of termination were null and void due to the lack of written form. There were also no urgent operational reasons pursuant to the KSchG (1) that could justify the dismissals.
The Arbeitsgericht Düsseldorf (hereinafter ‘the Court of First Instance’), seised under Article 21(1)(b)(i) of the Brussels I Regulation (recast) (2), dismissed the actions against both defendants.
Defendant 1 validly terminated the employment relationship with the plaintiff. Contrary to the plaintiff’s opinion, the dismissal was not socially unjustified within the meaning of Article 1(1), (2) and (3) of the KSchG. It was irrelevant whether this law applied at all to the plaintiff’s employment relationship with defendant 1. Due to the closure of the plaintiff’s location in Düsseldorf, there were urgent operational requirements. There was no need to carry out a social selection, as all employees working in Germany were made redundant.
The Court of First Instance took the view that the plaintiff’s dismissal by defendant 2 was not invalid under Article 613a(4) of the BGB (3). This provision serves to implement Article 4(1) of Directive 2001/23/EC (4), according to which the transfer of an undertaking or part of an undertaking as such does not constitute grounds for dismissal for the transferor or the transferee. It was irrelevant whether there was a transfer of undertakings because the termination was in any case for other reasons within the meaning of Article 613a(4), second sentence, of the BGB, namely the closure of all locations in Germany.
(1) Kündigungsschutzgesetz (Unfair Dismissals Act).
(2) 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).
(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.