BAG; 2024-05-29; 2 AZR 313/22
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2024:290524.U.2AZR313.22.0
Date: 2024-05-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0529(51)_ENG_SUMJURE
JURE summary
JURE summary
An employee in the aviation industry (hereinafter ‘the plaintiff’) filed a lawsuit against an airline (hereinafter ‘defendant 1’) due to a dismissal issued in a letter dated 14 July 2020. He argued that the dismissal was socially unjustified because defendant 1 had not made a sufficient social selection in accordance with Section 1(3) of the KSchG (1). In addition, he demanded a declaration that his employment relationship continued due to a transfer of business from defendant 1 to another airline company from Malta (hereinafter ‘defendant 2’).
Defendant 1 argued that there were operational reasons that justified the dismissal. It argued that it had discontinued its air traffic operations in Germany, in particular at Stuttgart Airport. It also denied that a transfer of business to defendant 2 had taken place. Defendant 2 pointed out that there was no contractual relationship between it and the plaintiff.
Based on the plaintiff’s appeal, the Landesarbeitsgericht Baden-Württemberg (hereinafter ‘the Court of Appeal’) partially amended the judgment of the Arbeitsgericht Stuttgart as the Court of First Instance. It considered the termination of 14 July 2020 to be invalid, while the later termination of 10 September 2020 had terminated the employment relationship, which had not been transferred to defendant 2. The Court of Appeal found that defendant 1 had made an incorrect social selection by not presenting comprehensible criteria for the selection of the plaintiff over other employees. At the same time, it emphasised that defendant 1 had shut down operations at the time of the second dismissal, which meant that continued employment was not possible. The Court of Appeal denied a transfer of business on the grounds that there were no indications of a takeover of structures or operating resources by defendant 2.
The Bundesarbeitsgericht (hereinafter ‘the Supreme Court’) dismissed the revisions filed by the plaintiff and defendant 1. The dismissal of 14 July 2020 was invalid because defendant 1 had not made a proper social selection. The German KSchG applied to the employment relationship between the plaintiff and defendant 1. Defendant 1 had stationed its aircraft in Germany, which meant that the requirements of Section 24(2) of the KSchG were met. At the same time, the Supreme Court held that the subsequent dismissal was justified as defendant 1 had actually closed down its operations in Germany. It also found that the dismissal was reviewable under EU law due to the international jurisdiction of German courts. A transfer of business to defendant 2 was also denied, as no takeover of essential operating resources or structures could be proven.
The German courts also had international jurisdiction with respect to defendant 2, even though the plaintiff did not conclude an employment contract with it, based on the fact that defendant 2 entered an appearance pursuant to the first sentence of Article 26(1) of the Brussels I Regulation (recast) (2).
(1) Kündigungsschutzgesetz (Protection Against Dismissal 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).