Opinion of the Advocate General — ECLI:EU:C:2023:268
Date: 2023-03-30
Language of the case: German
Subject matter: Approximation of laws;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-134/22 – 1 
Case C-134/22 
Request for a preliminary ruling 
Date lodged: 
1 March 2022 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
27 January 2022 
Appellant in the appeal on a point of law: 
MO 
Respondent in the appeal on a point of law: 
SM, as trustee of G GmbH 
  
BUNDESARBEITSGERICHT (FEDERAL LABOUR COURT) 
[…] 
Delivered on 
27 January 2022 
ORDER 
[…] 
In the case of 
MO 
Applicant, appellant and appellant in the appeal on a point of law, 
[…] 
SM, as trustee of G GmbH 
EN 
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Defendant, respondent and respondent in the appeal on a point of law, 
the Sixth Chamber of the Federal Labour Court ordered as follows following the 
hearing on 27 January 2022 […]: 
I. The following question is referred to the Court of Justice of the 
European Union for a preliminary ruling pursuant to Article 267 of the 
Treaty on the Functioning of the European Union (TFEU): 
What is the purpose of the second subparagraph of Article 2(3) of 
Council Directive 98/59/EC of 20 July 1998 on the approximation of 
the laws of the Member States relating to collective redundancies, 
according to which the employer is to forward to the competent public 
authority a copy of, at least, the elements of the written communication 
which are provided for in the first subparagraph, point (b), subpoints 
(i) to (v)? 
II. The proceedings in the appeal on a point of law are stayed pending a 
ruling by the Court of Justice of the European Union on the question 
referred. 
Reasons 
This request for a preliminary ruling concerns the interpretation of the second 
subparagraph of Article 2([3]) of Council Directive 98/59/EC of 20 July 1998 on 
the approximation of the laws of the Member States relating to collective 
redundancies (‘the Directive’). 
The request for a preliminary ruling has been made in connection with a dispute 
between the applicant and the defendant in his capacity as trustee of G GmbH 
(‘the debtor’). The parties disagree as to whether ordinary dismissal on operational 
grounds has validly terminated the employment relationship. 
A. Facts and subject matter of the main proceedings 
The applicant had been employed by the debtor as a welder since 1981. The 
bankruptcy court initiated insolvency proceedings against the debtor, at its 
request, by order of 1 October 2019. The defendant, as the court-appointed trustee, 
subrogated to the employer by virtue of that appointment and exercised the 
function of employer for the duration of the insolvency proceedings. 
On 17 January 2020, it was decided that the debtor would cease all business 
operations by no later than 30 April 2020, as a result of which it was planned to 
make more than 10% of the 195 workers still employed redundant in the period 
from 28 to 31 January 2020. Following the decision to close the business, 
negotiations on a reconciliation of interests were held with the debtor’s works 
council, for which purpose a draft reconciliation of interests agreement was sent to 
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the works council on 17 January 2020. The reconciliation of interests agreement 
was signed on 22 January 2020. That procedure, which is provided for under 
national law in accordance with the requirements of Paragraphs 111 and 112 of 
the Betriebsverfassungsgesetz (Works Constitution Law, ‘the BetrVG’), is 
intended to ensure that, in the event of a proposed alteration which, according to 
the legal definition, includes the closure of the establishment, the workers are 
involved and their interests are taken into account by at least attempting to 
conclude a reconciliation of interests agreement. In addition, the financial 
prejudice caused to the workers by such a measure should be compensated or at 
least mitigated under a social compensation plan which is enforceable as a matter 
of principle. 
If, as in the present case, the planned measure involves collective redundancies 
within the meaning of the Directive, the consultation procedure with the 
competent workers’ representatives must also be carried out in accordance with 
Paragraph 17(2) of the Kündigungsschutzgesetz (Law on protection against 
dismissal, ‘the KSchG’). The two participatory procedures can be combined, 
provided the employer makes it sufficiently clear if and which procedures are to 
be conducted simultaneously. Combined procedures are customary in Germany. 
The draft reconciliation of interests agreement provided in the present case on 
17 January 2020 also combined the procedures. By that draft, the consultation 
procedure with the works council, as the forum under national law responsible for 
representing the workers, was combined with the procedure for the reconciliation 
of interests and then duly initiated and conducted. In its final observations of 
22 January 2020, the works council stated that it did not see any way in which the 
projected redundancies might be avoided. 
However, a copy of the communication sent to the works council in accordance 
with Paragraph 17(2) of the KSchG was not forwarded to the Osnabrück 
Employment Agency, the authority responsible for the notification procedure 
under national law, in breach of Paragraph 17(3), first sentence of the KSchG and 
the second subparagraph of Article 2(3) of the Directive. 
The Osnabrück Employment Agency was sent a proper collective redundancy 
notice by means of a form and covering letter dated 23 January 2020, receipt of 
which was acknowledged by the Osnabrück Employment Agency on 27 January 
2020, whereupon, inter alia, the applicant’s employment relationship was 
terminated with effect from 30 April 2020 by letter received by the applicant on 
28 January 2020. 
The Osnabrück Employment Agency had already scheduled advisory 
appointments for 153 workers for 28 and 29 January 2020. 
By his application, the applicant in the main proceedings is seeking a finding that 
the employment relationship was not terminated by the notice of dismissal of 
28 January 2020. The applicant claims that the dismissal was null and void. He 
has based that claim, inter alia, on the fact that the debtor failed to provide the 
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Employment Agency with a copy of the communication sent to the works council 
in accordance with Paragraph 17(2) of the KSchG. He argues that, according to 
Paragraph 17(3), first sentence, of the KSchG and the second subparagraph of 
Article 2(3) of the Directive, this is a precondition to valid dismissal, not an 
ancillary obligation to which no penalty applies, and that this is the only way of 
ensuring that the Employment Agency is advised of impending redundancies as 
promptly as possible, so that it can start to prepare for them straight away and to 
adjust its placement efforts accordingly, for example by analysing demand on the 
job market for the professional categories of workers which will shortly be 
affected. 
The defendant contends that the dismissal was justified on the basis of the 
decision to close the business and was valid in all other respects; that the failure to 
forward a copy to the Employment Agency in accordance with Paragraph 17(3), 
first sentence, of the KSchG does not invalidate the notice of dismissal; that 
unlike, for example, the provisions on collective redundancy notices 
(Paragraph 17(1) of the KSchG) or on the consultation procedure itself 
(Paragraph 17(2) of the KSchG), that rule does not aim to protect the workers 
affected by collective redundancies or to avoid redundancies; and that the 
Employment Agency cannot infer the ways in which the projected redundancies 
might be avoided in the opinion of the works council from the copy, nor would 
forwarding the copy affect the consultations between the employer and the works 
council, as the copy merely serves to provide the competent authority with 
preliminary information, not to fulfil the notification requirement itself. 
The Arbeitsgericht (Labour Court) dismissed the action and the 
Landesarbeitsgericht (Regional Labour Court) dismissed the appeal. By the appeal 
on a point of law allowed by the Regional Labour Court, the applicant is seeking 
the same form of order. 
B. Legal context 
I. Bürgerliches Gesetzbuch (Civil Code) 
The Civil Code (‘the BGB’) of 18 August 1896, as re-promulgated on 2 January 
2002 (Federal Law Gazette I, p. 42) and last amended by Article 2 of the Law of 
21 December 2021 (Federal Law Gazette I, p. 5252), reads as follows (extract): 
‘Paragraph 134 Statutory prohibition 
A legal transaction that violates a statutory prohibition is void, unless 
the statute leads to a different conclusion.’ 
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II. Law on protection against dismissal 
The Law on protection against dismissal (KSchG) of 10 August 1951, as re-
promulgated on 25 August 1969 (Federal Law Gazette I, p. 1317) and last 
amended by Article 2 of the Betriebsrätemodernisierungsgesetz (Law on the 
modernisation of works councils) of 14 June 2021 (Federal Law Gazette I, 
p. 1762), also serves, in its third section, to transpose the Directive. The law reads 
as follows (extract): 
‘Section One. General protection against dismissal 
Paragraph 1 Socially unjustified dismissals 
(1) The dismissal of an employee whose employment relationship 
has continued for more than 6 months without interruption with the 
same business or undertaking shall be void where it is socially 
unjustified. 
Section Three. Redundancies subject to an obligation to issue a 
notification 
Paragraph 17 Obligation to issue a notification 
(1) 1The employer is under an obligation to notify the Employment 
Agency before it makes redundant: 
2. 10% of the regularly employed workers or more than 25 workers 
in establishments normally employing at least 60 and fewer than 500 
workers; 
… 
over a period of 30 calendar days. 2Any other termination of an 
employment relationship brought about by the employer shall be 
assimilated to redundancy. 
(2) 1If the employer contemplates making redundancies that are 
subject to the obligation to issue a notification under subparagraph 1 it 
shall promptly provide the works council with the appropriate 
information and notify it in writing, in particular, of: 
1. the reasons for the projected redundancies; 
2. the number and professional categories of workers to be made 
redundant; 
3. the number and professional categories of workers normally 
employed; 
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4. the period over which the redundancies are expected to take 
place; 
5. the proposed criteria for selecting the workers to be made 
redundant; 
6. the proposed criteria for calculating any redundancy payments. 
2The employer and works council shall have an opportunity, in 
particular, of consulting on the avoidance or limitation of redundancies 
and the mitigation of their consequences. 
(3) 1The employer must simultaneously forward to the Employment 
Agency a copy of the communication given to the works council; this 
must contain at least the details stated in points 1 to 5 of the first 
sentence of subparagraph 2. 2The notice referred to in subparagraph 1 
shall be given in writing and shall enclose the observations of the 
works council on the redundancies. 3If the works council has not made 
any observations, the notice shall be valid if the employer can 
demonstrate that the works council was notified at least 2 weeks prior 
to the notice given in accordance with the first sentence of 
subparagraph 2 and the stage reached in consultations. 4The notice 
must include information on the name of the employer, the registered 
office and type of establishment, as well as the reasons for the 
projected redundancies, the number and professional categories of 
workers to be made redundant, the number of workers normally 
employed, the period over which it is planned to carry out the 
redundancies and the criteria for selecting the workers to be made 
redundant. 5The notice shall also include, for the purposes of job 
placement and in agreement with the works council, information on 
the sex, age, profession and nationality of the workers to be made 
redundant. 6The employer shall send the works council a copy of the 
notice. 7The works council may send additional observations to the 
Employment Agency. 8It must send the employer a copy of the 
observations. 
…’ 
III. Works Constitution Law 
The Works Constitution Law of 15 January 1972 (Federal Law Gazette I, p. 13), 
as re-promulgated on 25 September 2001 (Federal Law Gazette I, p. 2518) and 
last amended by Article 5 of the Law of 10 December 2021 (Federal Law Gazette 
I, p. 5162), reads as follows (extract): 
‘Part Four. Collaboration by employees and co-determination 
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… 
Division Five. Staff policy 
Subdivision Three. Individual staff measures 
… 
Paragraph 102 Co-determination in the case of dismissal 
(1) 1The works council has to be consulted before every dismissal. 
2The employer has to inform the works council about the reasons for 
dismissal. 3Any notice of dismissal that is given without consulting the 
works council is null and void. 
… 
Division Six. Financial matters 
… 
Subdivision Two. Alterations 
Paragraph 111 Alterations 
1In establishments that normally have more than 20 employees with 
voting rights, the employer has to inform the works council in full and 
in good time of any proposed alterations which may entail substantial 
prejudice to the staff or a large sector thereof and consult the works 
council on the proposed alterations. … 3The following are deemed as 
alterations for the purposes of sentence 1: 
1. reduction of operations in or closure of the whole or important 
departments of the establishment; 
… 
Paragraph 112 Reconciliation of interests in the case of alterations; 
social compensation plan 
(1) 1If the employer and the works council reach an agreement to 
reconcile their interests in connection with the proposed alterations, the 
said agreement is to be recorded in writing and signed by the employer 
and the works council; … 2The foregoing also applies to an agreement 
on full or part compensation for any financial prejudice sustained by 
staff as a result of the proposed alterations (social compensation plan). 
3The social compensation plan has the effect of a works agreement. …’ 
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IV. Relevant provisions of EU law 
In the view of the referring Chamber, the provisions of the second subparagraph 
of Article 2(3) and of Article 6 of the Directive are relevant. 
C. Need for a ruling by the Court and explanation of the question 
referred for a preliminary ruling 
The judgment on the dispute depends solely on whether the dismissal was null and 
void due to the infringement in this case of the obligation pursuant to 
Paragraph 17(3), first sentence, of the KSchG, which transposed the second 
subparagraph of Article 2(3) of the Directive. The applicant has removed other 
grounds for invalidity which may exist under national law from the appeal on a 
point of law. Nor is the Chamber convinced that such other grounds for invalidity 
exist. 
I. Neither the Directive nor national law provide for an express penalty for 
errors committed in the collective redundancy procedure. Where an EU directive 
does not contain a specific provision covering a breach of its provisions, it is for 
the Member States to choose a penalty. In doing so, they must ensure that 
infringements of Community law are punished in accordance with substantive and 
procedural rules similar to those which apply to infringements of national law of a 
similar nature and gravity. The penalties applied must be effective, proportionate 
and dissuasive (see judgments of 21 December 2016, AGET Iraklis, C-201/15, 
paragraph 36, and of 16 July 2009, Mono Car Styling, C-12/08, paragraph 34 et 
seq.). Thus, regard must be had both to the principle of equivalence and to the 
principle of effectiveness (effet utile) (Bundesarbeitsgericht (Federal Labour 
Court) judgment of 13 February 2020, Case 6AZR 146/19, paragraph 98, BAGE 
169, 362). It is for the national courts to determine independently whether national 
legislation meets the requirements of equivalence and effectiveness (judgments of 
29 October 2009, Ponin, C-63/08, paragraph 49, and of 23 April 2009, 
Angelidaki and Others, C-378/07 to C-380/07, paragraphs 163 and 158 et seq.). 
II. The Federal Labour Court has repeatedly held, in keeping with these 
principles, that breaches by an employer of its obligations in connection with 
collective redundancies render the dismissal null and void under Paragraph 134 of 
the BGB on the grounds of the protection of the workers which they are intended 
to provide. 
1. According to that provision, a legal transaction that violates a statutory 
prohibition is void, unless the statute leads to a different conclusion, whereby the 
prohibition need not have been expressed directly in the wording of the law and 
may also follow from the scheme and purpose of the provision in question. In that 
respect, the scope of the protective purpose of the infringed provision, in this case 
Paragraph 17(3), first sentence, of the KSchG, is the relevant provision (see 
Federal Labour Court judgments of 21 March 2013, Case 2AZR 60/12, 
paragraph. 20, BAGE 144, 366; of 22 November 2012, Case 2AZR 371/11, 
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paragraph 38, BAGE 144, 47; and of 19 March 2009, Case 8AZR 722/07, 
paragraph 25, BAGE 130, 90). 
2. In the past, the Federal Labour Court has held that failure to comply with the 
obligation to give notice in a collective redundancy procedure (Paragraph 17(1), 
read in combination with subparagraph 3, second and third sentences, of the 
KSchG) violates a statutory prohibition within the meaning of Paragraph 134 of 
the BGB. Consequently, notices of dismissal which are not fully notified are null 
and void. However, dismissal by the employer in the form of a collective 
redundancy notice which does not meet the requirements of Paragraph 17(1) and 
(3) of the KSchG is also null and void. That applies, for example, where the 
employer fails to attach the works council’s observations on the dismissals to the 
notice or to duly demonstrate that the works council was notified and the stage 
reached in consultations (see Federal Labour Court judgments of 14 May 2020, 
Case 6AZR 235/19, paragraph 135, BAGE 170, 244, and of 13 February 2020, 
Case 6AZR 146/19, paragraph 101 with further citations, BAGE 169, 362). 
Similarly, errors in the notification procedure with regard to the mandatory 
information referred to in Paragraph 17(3), fourth sentence, of the KSchG render 
the collective redundancy notice invalid and thus the dismissal null and void (see 
Federal Labour Court judgments of 13 February 2020, Case 6AZR 146/19, 
paragraph 108, BAGE 169, 362, and of 28 June 2012, Case 6AZR 780/10, 
paragraph 50, BAGE 142, 202). The same legal effect applies where notice is 
submitted to an employment agency which is not competent (Federal Labour 
Court judgment of 13 February 2020, Case 6AZR 146/19, paragraph 102, BAGE 
169, 362). 
If the employer has not conducted or has not properly conducted the consultation 
procedure provided for in Paragraph 17(2) of the KSchG, that also renders the 
dismissal null and void under Paragraph 134 of the BGB (see Federal Labour 
Court judgment of 22 September 2016, Case 2AZR 276/16, paragraph 36, BAGE 
157, 1, and of 21 March 2013, Case 2AZR 60/12, paragraph 19 et seq., BAGE 
144, 366). 
3. The legal effect of the dismissal being null and void in such cases due to 
violation of a statutory prohibition within the meaning of Paragraph 134 of the 
BGB is similar to the legal effect under national law where dismissals are socially 
unjustified (Paragraph 1(1) of the KSchG) or where the works council was not 
heard or not properly heard within the framework of its powers of co-
determination on individual measures before notice of dismissal was given 
(Paragraph 102(1), third sentence, of the BetrVG). 
III. However, the referring Chamber cannot itself determine whether 
infringement of the obligation under Paragraph 17(3), first sentence, of the KSchG 
to send the Employment Agency a copy of the communication given to the works 
council also renders the dismissal null and void. In order to determine whether 
failure to comply with that obligation must be regarded as violation of a statutory 
prohibition within the meaning of Article 134 of the BGB, it is necessary, in the 
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absence of an express prohibition, to determine the protective purpose of the first 
sentence of Paragraph 17(3) of the KSchG. That in turn requires clarification of 
the protective purpose of the second subparagraph of Article 2(3) of the Directive 
and thus interpretation of that provision, which it is for the Court alone to make in 
a preliminary ruling procedure pursuant to Article 267 TFEU (see, in that regard, 
judgment of 6 October 2021, C-561/19, paragraphs 27 and 28). 
1. It is clear in particular from recital 2, that the Directive is also designed to 
protect workers in the event of collective redundancies (judgments of 
21 December 2016, AGET Iraklis, C-201/15, paragraphs 27 and 32, and of 9 July 
2015, Baikaya, C-229/14, paragraph 32. See also judgment of 17 December 1998, 
Lauge and Others, C-250/97, paragraph 19). The provision of the second 
subparagraph of Article 2(3) of the Directive is intended to foster the aim of the 
Directive to ensure that employers, authorities with competence for the collective 
redundancy notice (in Germany the competent Employment Agency) and 
workers’ representatives act jointly (see Proposal for a Council Directive on the 
harmonisation of the legislation of the Member States relating to redundancies 
COM(72) final 1400, p. 3). It might be possible to achieve that aim only if the 
competent authority is informed of the projected dismissal of a larger number of 
workers as promptly as possible. In order to safeguard this and thus also the 
protection of workers, the employer might be obliged to send the copy to the 
competent authority pursuant to the second subparagraph of Article 2(3) of the 
Directive. 
2. However, the referring Chamber considers that there are serious arguments 
which refute the assumption that the second subparagraph of Article 2(3) of the 
Directive is intended to provide individual protection. 
a) It was the intention of the national legislature that Paragraph 17(3), first 
sentence, of the KSchG should ensure that the employment administration is 
informed promptly ([…]). That intention was rooted in the earlier understanding 
that dismissal occurs when the period of notice expires. That understanding was 
abandoned in national case-law following the judgment of 27 January 2005, Junk, 
C-188/03. ‘Dismissal’ within the meaning of Paragraph 17(1) of the KSchG 
means receipt of the notice of dismissal (settled case-law of the Federal Labour 
Court since judgment of 23 March 2006, Case 2AZR 343/05, BAGE 117, 281). 
The previous understanding also explains why Paragraph 17(3), first sentence, of 
the KSchG requires a copy of the communication given to the works council to be 
forwarded simultaneously; in that regard, it gold-plates the Directive. That 
approach was based on the national legislature’s understanding that the 
consultation procedure is usually conducted after dismissal ([…]). 
b) Where, based on the current understanding of ‘dismissal’ in EU law, the 
consultation procedure is conducted before notice of dismissal is given, as in the 
present case, forwarding a copy of the communication sent to the works council at 
the start of the consultation procedure, as required under the second subparagraph 
of Article 2(3) of the Directive, will not have any effect on the placement efforts 
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of the employment administration. It is not known at the time of the 
communication to the works council whether any, and if so, how many workers 
will enter the job market, and if so when, and which workers will be affected. This 
is precisely what has (yet) to be discussed in the consultation procedure with the 
works council, the aim of which is to enable the works council to make 
constructive proposals in order to avoid, or at least reduce, the collective 
redundancies or to mitigate the consequences of collective redundancies by 
recourse to accompanying social measures (Federal Labour Court judgment of 
13 June 2019, Case 6AZR 459/18, paragraph 27, BAGE 167, 102; see also 
judgments of 3 March 2011, Claes, C-235/10 to C-239/10, paragraph 56, and of 
10 September 2009, Akavan Erityisalojen Keskusliitto and Others, C-44/08, 
paragraph 53), and thus enable the works council to influence the course of action 
decided on by the employer (see Federal Labour Court judgments of 13 June 
2019, Case 6AZR 459/18, paragraph 41 with further citations, BAGE 167, 102, 
and of 26 January 2017, Case 6AZR 442/16, paragraph 25, BAGE 158, 104). 
Thus, individual protection is still out of the question at the time when the 
Directive requires the obligation laid down in the second subparagraph of 
Article 2(3) of the Directive to be fulfilled. 
c) The purpose of the collective redundancy notice is, in turn, to allow the 
competent authority to seek solutions to the problems raised by the projected 
collective redundancies within the period laid down in Article 4(1) of the 
Directive (‘standstill period’) which, as a rule, is 30 days (judgment of 27 January 
2005, Junk, C-188/03, paragraphs 47 and 51; judgment of the Federal Labour 
Court of 13 June 2019, Case 6AZR 459/18, paragraph 31, BAGE 167, 102). That 
clearly follows from Article 4(2) of the Directive. Under the Directive, that action 
by the competent authority is therefore triggered by the employer’s notification 
pursuant to Article 3(1) of the Directive. In the view of the referring Chamber, 
that suggests, based on the scheme of the Directive, that the earlier mandatory 
notification under the second subparagraph of Article 2(3) of the Directive cannot, 
on the other hand, provide individual protection. That conclusion would also be 
logical in that, as we have seen, the question of whether any, and if so, how many 
workers will enter the job market, and if so when, and which workers will be 
affected is not finalised until consultations have been completed.  
d) In the view of the referring Chamber, these considerations suggest that the 
second subparagraph of Article 2(3) of the Directive, and thus also 
Paragraph 17(3), first sentence, of the KSchG, do not form part of the notice or the 
consultation procedure, and are simply procedural provisions. Their infringement, 
even taking account of the principle of equivalence and effectiveness in national 
law, would therefore not entail the same legal effect as infringement of the 
obligation to give notice or engage in consultations and thus would not render the 
dismissal of an individual worker affected by the collective redundancy null and 
void, especially given that, as illustrated by the present case, in which counselling 
appointments were made for more than 100 workers as soon as the collective 
redundancy notice was received, the prompt start of placement efforts can be 
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guaranteed notwithstanding infringement of the obligation under Paragraph 17(3), 
first sentence, of the KSchG. 
D. [procedural matters] […] 
[…]