BAG; 2022-11-30; 5 AZR 336/21
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2022:301122.U.5AZR336.21.0
Date: 2022-11-30
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1130(51)_ENG_SUMJURE
JURE summary
JURE summary
A pilot domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against an airline domiciled in Malta (hereinafter ‘the defendant’). The subject-matter of the dispute was the effectiveness of a foreign assignment which the defendant made using its rights to give instructions within a dismissal with the option of altered conditions of employment.
The original employer of the plaintiff, the Irish airline Ryanair, decided to close its base in Nuremberg which was the home base of the plaintiff. After the employment of the plaintiff passed to the defendant as the new acquirer and the defendant stuck to the decision to cancel its operations in Nuremberg, the plaintiff had been transferred to the defendant’s home base at the airport in Bologna, Italy.
When filing his action in the labour court Arbeitsgericht Nürnberg (hereinafter ‘the Court of First Instance’), the plaintiff argued that the defendant’s right to give instructions did not include a transfer abroad and was therefore ineffective. The Court of First Instance dismissed the action.
The Landesarbeitsgericht Nürnberg (hereinafter ‘the Court of Appeal’) dismissed the appeal of the plaintiff.
The revision filed by the plaintiff with the Bundesarbeitsgericht (hereinafter ‘the Supreme Court’) was found unjustified.
The international jurisdiction of German courts was undisputed and resulted, due to the foreign aspect of the employment relation, from Article 21(1)(b)(i) of the Brussels I Regulation (recast) (1). As the defendant entered an appearance, the international jurisdiction of German courts was also given under Article 26(1)(1) of the Brussels I Regulation (recast).
Article 106(1) of the GewO (2) stipulates that the employer may specify the content, place and time of the work performance at its own discretion, unless such work conditions are provided for in the agreement of employment, company agreement, the applicable collective agreement or by law. The agreement of employment and the collective agreement concerning the plaintiff did not specify the place of work, neither expressly nor by implication. The airport in Nuremberg was just the home base of the plaintiff, but not his place of work. The transfer instruction of the defendant was based on an entrepreneurial decision, namely the planned and carried out closure of the base in Nuremberg. The interest of the defendant to enforce its organisational decision justified the transfer instruction despite the disadvantages for the plaintiff.
The Supreme Court dismissed the revision of the plaintiff against the judgement of the Court of Appeal.
(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) Gewerbeordnung (Trade Regulation Act).