BAG; 2021-02-25; 8 AZR 171/19
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2021:250221.U.8AZR171.19.0
Date: 2021-02-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0225(51)_ENG_SUMJURE
JURE summary
JURE summary
A leading car tyre manufacturer domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against its former employee also domiciled in Germany (hereinafter the ‘defendant’), seeking compensation based on its own and an assigned right.
The defendant negotiated for the plaintiff several contracts for the delivery of soot with Polish and Cypriot companies, which the plaintiff subsequently concluded. Later, one of the participating banks announced the suspicion of fraud amounting to EUR 9.5 million in connection with the above contracts. The Federal prosecution office in Bremen filed criminal charges against the defendant and further participants on the part of the soot delivery. The action was approved by the Landgericht Bremen.
The plaintiff filed a petition with the Arbeitsgericht Hannover (hereinafter ‘the Court of First Instance’) demanding the defendant be ordered to pay EUR 9.5 million to the plaintiff. The defendant requested the petition to be rejected and filed a counterclaim to be compensated for the loss he incurred and would further incur by the earlier enforcement initiated by the plaintiff based on an earlier decision of the same court.
The Court of First Instance upheld the action and rejected the counterclaim.
Based on an appeal of the defendant, the Landesarbeitsgericht Niedersachsen (hereinafter ‘the Court of Appeal’) annulled the judgment of the Court of First Instance and decided in favour of the counterclaim, ordering the plaintiff to compensate the defendant for any loss incurred as a result of the enforcement.
The revision filed by the plaintiff with the Bundesarbeitsgericht (hereinafter ‘the Supreme Court’) was successful.
Under Article 4(1) of the Brussels I Regulation (recast) (1), the jurisdiction of the German courts also extended to assignors, i.e. companies associated with the plaintiff located in different EU countries which assigned their possible rights for compensation against the defendant to the plaintiff.
The Court of Appeal was correct to state that any possible claims, including an assigned right, were lapsed under Article 18 of the contract of employment (2). However, the claims did not originate in the employment relationship between the parties to the contract of employment. Where claims based on an own and an assigned right are concerned, different subjects of dispute exist despite the pursuance of a single target of the lawsuit.
With regard to the facts established by the Court of Appeal, the Supreme Court couldn't establish whether and to what extent the action and the counterclaim were justified or not.
The Supreme Court annulled the decision of the Court of Appeal and referred the case back to the Court of Appeal for a new hearing and decision.
(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.
(2) ‘Claims of both parties from the Contract of Employment must be made in writing within the period of three months after their due date. […] If a claim has been made in time and the other party refuses the performance thereof or makes no declaration within one month after the claims has been made, such claims shall lapse if not presented to the court within three months after the refusal or expiration of the above period.’