Opinion of the Advocate General — ECLI:EU:C:2025:134
Date: 2025-02-27
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-134/24 – 1 
Case C-134/24 [Tomann] i 
Request for a preliminary ruling 
Date lodged: 
20 February 2024 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
1 February 2024 
Defendant, appellant and appellant in the appeal on a point of law: 
UR, acting as liquidator of V GmbH 
Applicant, respondent and respondent in the appeal on a point of law: 
DF 
  
BUNDESARBEITSGERICHT (FEDERAL LABOUR COURT) 
… 
Bundesarbeitsgericht 
Delivered on 
1 February 2024 
ORDER 
… 
In the case of 
UR, acting as liquidator of V GmbH 
Defendant, appellant and appellant in the appeal on a point of law, 
 
i The present case has been given a fictitious name which does not correspond to the real name of any of the parties to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1. 2. 2024 – CASE C-134/24 
 
2  
[v] 
DF 
Applicant, respondent and respondent in the appeal on a point of law, 
the Second Chamber of the Bundesarbeitsgericht ordered as follows following the 
hearing on 1 February 2024 …: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
1. Must Article 4(1) of Council Directive 98/59/EC of 20 July 1998 on 
the approximation of the laws of the Member States relating to 
collective redundancies (‘Directive 98/59/EC’) be interpreted as 
meaning that a dismissal as part of a collective redundancy subject to 
compulsory notification can terminate the employment relationship of 
an employee concerned only once the standstill period has expired? 
If the answer to Question 1 is in the affirmative: 
2. Does the expiry of the standstill period not only require a collective 
redundancy notification, but must it also satisfy the conditions laid 
down in the fourth subparagraph of Article 3(1) of Directive 
98/59/EC? 
3. Can an employer who has announced dismissals subject to compulsory 
notification without a (proper) collective redundancy notification give 
such notification at a later stage with the consequence that, after the 
expiry of the standstill period, the employment relationship of the 
employees concerned can be terminated by the dismissals previously 
announced? 
If the answers to Questions 1 and 2 are in the affirmative: 
4. Is it compatible with Article 6 of Directive 98/59/EC for national law 
to leave it to the competent authority to determine, in a manner which 
is incontestable for the employee and binding on the labour courts, 
when the standstill period expires in a particular case, or must the 
employee necessarily be able to bring an action before a court for 
review of the accuracy of the authority’s determination? 
II. … [Staying of the proceedings] 
Grounds 
TOMANN 
 
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A. Subject matter of the main proceedings 
1 I. The parties disagree as to the termination of their employment relationship 
by ordinary dismissal, which the defendant announced in December 2020 with 
effect from 31 March 2021. It had not issued a collective redundancy notification 
as required by Paragraph 17(1) of the Kündigungsschutzgesetz (Law on protection 
against unfair dismissal; ‘KSchG’). It also failed to do so at a later stage prior to 
31 March 2021. According to the organisation chart of the Bundesarbeitsgericht, 
the Sixth Chamber thereof has jurisdiction to determine the dispute and would like 
to dismiss the applicant’s action for unfair dismissal in its entirety. The Sixth 
Chamber considers that it is prevented from doing so – as it showed in detail in an 
order of 14 December 2023 (- 6 AZR 157/22 [B] -) – for reasons of national 
procedural law. 
2 II. The Second Chamber of the Bundesarbeitsgericht has previously 
considered that a dismissal announced without the necessary prior collective 
redundancy notification is void (ineffective) and therefore cannot terminate the 
employment relationship. In contrast, the Sixth Chamber would like to take the 
view in future that the absence or incorrectness of a collective redundancy 
notification required under EU or national law has no legal bearing on the 
decision to terminate an employment relationship for which notification had been 
given. Rather, both the absence of a collective redundancy notification and the 
incorrectness thereof should be completely inconsequential. It is for the German 
legislature to lay down a ‘penalty’ for errors in the notification procedure for 
collective redundancies. That should not lie in the area of labour law, but must lie 
solely in the area of employment promotion law (judgment of the 
Bundesarbeitsgericht, 14 December 2023 – 6 AZR 157/22 [B] – paragraphs 7, 22, 
32, and above all paragraph 35). 
3 III. National procedural law provides for a special procedure where there are 
differences of opinion between chambers of the Bundesarbeitsgericht. Under 
Paragraph 45(2) and (3) of the Arbeitsgerichtsgesetz (Law on labour courts; 
‘ArbGG’) a chamber of the Bundesarbeitsgericht may deviate from the case-law 
of another chamber only if the latter has relinquished its view in response to a 
corresponding question or – failing that – the Grand Chamber of the 
Bundesarbeitsgericht has adopted a decision on the correct answer to the 
underlying question. By order of 14 December 2023 (- 6 AZR 157/22 [B] -), the 
Sixth Chamber therefore submitted the following question to the Second Chamber 
pursuant to the first sentence of Paragraph 45(3) of the ArbGG: 
‘Is the opinion held since the judgment of 22 November 2012 (- 2 
AZR 371/11 -), that a dismissal as a legal act infringes a statutory prohibition 
within the meaning of Paragraph 134 of the Bürgerliches Gesetzbuch (Civil 
Code; ‘BGB’) and that the dismissal is therefore invalid, if there is no 
effective notification pursuant to Paragraph 17(1)(3) of the KSchG when it 
is announced, adhered to?’ 
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B. Relevant national law 
4 I. Kündigungsschutzgesetz in the version published on 25 August 1969 
(BGBl. I, p. 1317): 
‘Paragraph 17  
Obligation to notify 
 (1) The employer is under an obligation to notify the Employment Agency 
(Agentur für Arbeit) before it makes redundant 
1. more than 5 workers in establishments normally employing more 
than 20 and fewer than 60 workers, 
2. 10% of the workers normally employed in the establishment, or 
more than 25 workers, in establishments normally employing at 
least 60 and fewer than 500 workers, 
3. at least 30 workers in establishments normally employing at least 
500 workers 
… 
over a period of 30 calendar days. 
Paragraph 18  
Standstill period 
(1) Redundancies which must be notified under Paragraph 17 may take 
effect less than one month after the Employment Agency has received the 
notification only with the latter’s consent; consent may be given 
retroactively with effect from the time at which the application was filed. 
(2) In certain cases, the Employment Agency may decide that the 
redundancies shall take effect not earlier than at most two months after 
receipt of the notification. 
…’ 
5 II. Bürgerliches Gesetzbuch in the version published on 2 January 2002 
(BGBl. I, p. 42, corrigendum, p. 2909, and BGBl. 2003 I, p. 738): 
‘Paragraph 134  
Statutory prohibition 
TOMANN 
 
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Any legal act contrary to a statutory prohibition shall be void except as 
otherwise provided by law. 
Paragraph 615  
Remuneration in the case of default in acceptance and business risk 
If the person entitled to services is in default in accepting the services, the 
party owing the services may then demand the agreed remuneration for the 
services not rendered as the result of the default without being obliged to 
provide subsequent service. 
…’ 
6 III. Zehntes Buch Sozialgesetzbuch (Book X of the Social Code) – Social 
administration procedures and social data protection – in the version published on 
18 January 2001 (BGBl. I, p. 130): 
‘Paragraph 20  
Principle of inquiry 
(1) The authority shall inquire of its own motion into the facts. It shall 
determine the nature and scope of the investigations; it shall not be 
bound by the arguments and requests for evidence of the interested 
persons or parties. 
(2) The authority shall take account of all the facts relevant to the 
particular case, including those favourable to the interested persons or 
parties. 
…’ 
C. Relevant provisions of EU law 
7 In the view of the Second Chamber of the Bundesarbeitsgericht, the following 
provisions are relevant secondary EU law: Articles 3(1), 4(1) to (3) and 6 of 
Directive 98/59/EC. 
D. Need for a ruling from the Court of Justice and analysis of the 
questions referred 
I. Need for a ruling from the Court of Justice 
8 1. For the reasons set out below, the Second Chamber of the 
Bundesarbeitsgericht is unable to answer the question referred to it by the Sixth 
Chamber without a procedure being conducted pursuant to Article 267 TFEU. 
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9 (a) In agreement with the Sixth Chamber, the Second Chamber considers it 
possible that the nullity of a dismissal announced without a proper collective 
redundancy notification pursuant to Paragraph 134 of the BGB constitutes a 
disproportionate legal consequence – also having regard to the requirements of 
EU law. The Sixth Chamber set out the supporting reasons in its abovementioned 
order of 14 December 2023 (- 6 AZR 157/22 [B] – paragraph 11 et seq., in 
particular paragraph 26 et seq., on interpretation in conformity with EU law), to 
which reference is made in order to avoid repetition. 
10 (b) However, this continues to be assessed differently in German academic 
writings, at least in the case of a complete failure to notify (Schubert/Schmitt 
JbArbR, Vol. 59, p. 81, 96). Furthermore, the Sixth Chamber’s question is not 
limited to resolving the issue regarding the nullity of the dismissal resulting from 
Paragraph 134 of the BGB. The Second Chamber considers that the view set out 
in the order referring the question, that the absence or incorrectness of a collective 
redundancy notification required under EU or national law has no legal bearing on 
the notified termination of the employment relationship for which notification has 
been given, is incompatible with EU law. Rather, the Second Chamber believes 
that a distinction must be drawn. The decisive factor is whether the employer has 
completely failed to issue a collective redundancy notification required under EU 
law or has in fact done so. 
11 (aa) If the employer fails to issue a collective redundancy notification, the 
Employment Agency responsible for employment services under national law is 
not aware of the impending redundancies. Accordingly, it is not in a position to 
initiate the necessary preparations for efforts to find employment for the 
employees affected by the collective redundancy. In this case of a complete lack 
of a collective redundancy notification, the Second Chamber would like rule that 
the legal effects of the dismissal announced by the employer take effect only when 
the collective redundancy notification has been issued retrospectively, that is to 
say has been given at a later stage, and the Employment Agency has what it 
considers to be the necessary preparation time for finding employment. That 
period is determined in national law pursuant to Paragraph 18(1) and (2) of the 
KSchG (‘the standstill period’). The employment relationship for which 
notification has been given continues to exist with its previous rights and 
obligations until the standstill period expires. The legal effects of the dismissal do 
not enter into force until the end of the one-month period laid down in 
Paragraph 18(1) of the KSchG or the period set by the Employment Agency 
pursuant to Paragraph 18(2) of the KSchG. In any event, the employer must 
continue to pay the employee the agreed remuneration until the expiry of the 
standstill period in accordance with Paragraph 615 of the BGB, even if it does not 
employ him or her. This applies even if the employment relationship could have 
ended at an earlier date due to a shorter notification period. If, on the other hand, 
the requirements laid down in Article 4 of Directive 98/59/EC did not allow the 
employer to issue a collective redundancy notification, which it initially failed to 
give, after receipt of the notification of dismissal and thus eliminate the standstill 
period, that would be tantamount to the dismissal being rendered void (invalid). In 
TOMANN 
 
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that case, the Second Chamber would have to answer the Sixth Chamber’s 
question by stating that it – the Second Chamber – is adhering to its previous case-
law. 
12 (bb) If the projected collective redundancies are notified to the Employment 
Agency, the employer has initiated an administrative procedure in which the 
completeness of the collective redundancy notification is checked by the 
authority. This is subject to the principle of the investigation of the facts by an 
authority of its own motion (Paragraph 20 of SGB X), that is to say the 
Employment Agency is obliged to work towards supplementation of incomplete 
information by the employer. Under national procedural law, the Employment 
Agency alone decides whether the notification is in the proper form and the 
duration of the necessary preparation time for the forthcoming finding of 
employment. If the authority fixes the expiry of the standstill period 
(Paragraph 18 (1) and (2) of the KSchG) on a specific date, that decision is, in the 
view of the Second Chamber, incontestable for the employee and binding on the 
labour courts. In that case, the latter may not conclude on their own authority that 
the collective redundancy notification was ‘actually’ incorrect and therefore the 
standstill period has not (yet) started or expired. 
13 2. Since Paragraphs 17 and 18 of the KSchG must be interpreted by the 
national courts in accordance with EU law, the prescriptive content of 
Articles 3(1), 4(1) to (3) and 6 of Directive 98/59/EC is relevant to the Second 
Chamber’s answer to the Sixth Chamber’s question of 14 December 2023. It is 
true that the Second Chamber considers that the existing decisions of the Court of 
Justice of the European Union support its interpretation of the relevant EU law. 
However, the Chamber does not consider that the strict requirements of an acte 
clair or acte éclairé are satisfied, and is therefore referring the above questions to 
Court of Justice. 
II. Analysis of the first question 
14 The Second Chamber – unlike the Sixth Chamber – construes Article 4(1) of 
Directive 98/59/EC as meaning that an employment relationship terminated in the 
course of a collective redundancy subject to notification under EU law cannot be 
ended before the expiry of the standstill period under Paragraph 18(1) and (2) of 
the KSchG. The effects of the dismissal are ‘suspended’ until it expires (see 
opinion of Advocate General Tizzano of 30 September 2004 – C-188/03 – [Junk] 
paragraph 68). In that respect, the standstill period acts as a ‘minimum notice 
period’. This is made clear by the second sentence of the first subparagraph of 
Article 4(1) of Directive 98/59/EC, under which any provisions governing 
individual rights with regard to notification of dismissal are to remain unaffected. 
15 Contrary to the view of the Sixth Chamber, the Second Chamber considers that 
this consequence under labour law also constitutes the necessary and sufficient 
response under EU law to the absence or incorrectness of a collective redundancy 
notification. It ensures that the Employment Agency, as the competent authority, 
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has sufficient time to seek solutions to the problems raised by the projected 
collective redundancies (see Article 4 (2) and (3) of Directive 98/59/EC). The 
employees concerned do not lose their ‘old’ employment relationships before the 
expiry of the standstill period and do not ‘enter the labour market’ until such time. 
III. Analysis of the second question 
16 The Second Chamber further construes Article 4(1) of Directive 98/59/EC as 
meaning that the standstill period laid down therein – and thus also that laid down 
in Paragraph 18(1) and (2) of the KSchG – can only start and thus expire if the 
required collective redundancy notification meets the requirements set out in the 
fourth subparagraph of Article 3(1) of Directive 98/59/EC. First, that is 
demonstrated by the comprehensive reference in Article 4(1) of Directive 
98/59/EC to Article 3(1) thereof. Second, that is the only way to achieve the 
purpose of the collective redundancy notification described in the first question 
referred, which is to enable the authority, on the basis of the required information, 
to seek solutions to the problems raised by the projected collective redundancies 
(see Article 4(2) and (3) Directive 98/59/EC). 
IV. Analysis of the third question 
17 1. The Second Chamber considers that a dismissal announced without the 
required (proper) collective redundancy notification does not have to be 
‘irremediably’ void, that is to say ineffective. Rather, the purpose of the 
notification procedure is also fully achieved if the employer is able to issue a 
collective redundancy notification at a later stage – in accordance with the 
requirements set out in the fourth subparagraph of Article 3(1) of Directive 
98/59/EC – and thus (retroactively) eliminate the standstill period. That does not 
require a new notification of dismissal. The fact that the standstill period only 
begins with the subsequent notification ensures that the competent authority 
always has the minimum period of time embodied in the standstill period before 
the employment relationship concerned is terminated in order to seek solutions to 
the problems raised by the collective redundancies on the basis of the necessary 
information (see Article 4(2) and (3) of Directive 98/59/EC). 
18 2. In the view of the Second Chamber, the decision of the Court of Justice of 
the European Union of 27 January 2005 in Junk (- C-188/03 -) does not preclude 
this. In that decision, the Court of Justice did not state a view on how the 
employer is to [act] where notifications of dismissal are given before a (proper) 
collective redundancy notification is issued. Rather, it merely found that 
dismissals are only possible ‘without penalty’ after they have been notified to the 
competent authority, that is to say at the immediate start of the standstill period – 
which is then often included in the applicable notification periods. By contrast, the 
Court of Justice has not held that dismissals announced without prior (proper) 
notification must be ‘irremediably’ void. That also seems improbably in the light 
of the provisions of the Directive 98/59/EC and the origin thereof (judgment of the 
Bundesarbeitsgericht, 14 December 2023 – 6 ARR 157/22 [B] – paragraph 8). 
TOMANN 
 
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Rightly, the ‘penalty’ for late issue of a (proper) collective redundancy 
notification can be, inter alia, that the legal effects of the notification of dismissal 
do not take effect temporarily and the employer must remunerate the employees 
concerned pursuant to Paragraph 615 of the BGB until the expiry of the standstill 
period and thus possibly beyond the expiry of the notification period, even if he or 
she has not actually employed them, despite the dismissal being effective in 
principle. 
19 3. Merely by way of clarification, the Second Chamber notes – in this respect 
in line with the Sixth Chamber – that the possibility of taking action at a later 
stage does not extend to the consultation procedure pursuant to Article 2 of 
Directive 98/59/EC. If it was not carried out at all or was not carried out properly 
before the dismissals were announced, the dismissals are (and remain) void under 
Paragraph 134 of the BGB. That is because the consultation procedure – unlike 
the notification procedure – primarily serves to avoid dismissals. That purpose can 
no longer be achieved by subsequently carrying out consultations after the 
dismissals have been announced. It would not guarantee that the consultations 
between the employer and employee representatives to avoid redundancies would 
be open in terms of the outcome. It would be much more difficult for workers’ 
representatives to achieve the ‘withdrawal’ of a redundancy that has been 
announced than to secure the abandonment of an announcement that is being 
contemplated (judgment of the Court of Justice of 27 January 2005 – C-188/03 – 
[Junk] paragraph 44). 
V. Analysis of the fourth question 
20 1. Based on the ‘alternative’ wording in Article 6 of Directive 98/59/EC and 
recital 12 thereof (‘administrative and/or judicial procedures’), the Second 
Chamber considers that it is sufficient if the competent authority under national 
law alone examines a collective redundancy notification issued by the employer to 
establish whether or not it is proper and, if it is, determines the end of the 
standstill period in the specific case. The authority’s determination as to the end of 
the standstill period is to be taken as binding by the labour courts in the context of 
a dispute between the employee and employer regarding the termination of the 
employment relationship. The employee cannot contest the authority’s 
determination by means of judicial review. In the view of the Second Chamber, 
that follows from the purely labour market policy orientation of the notification 
procedure. Unlike the consultation procedure, it primarily protects the labour 
market and the competent authority. In contrast, the employee is affected only by 
default. He or she is to lose his or her ‘old’ employment relationship only after the 
competent authority has been able, on the basis of the necessary information, to 
seek solutions to the problems raised by the collective redundancies (see 
Article 4(2) and (3) of Directive 98/59/EC). If the authority considers itself 
sufficiently informed in that regard, the employee and the courts must accept that 
fact. 
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21 2. In its decision of 5 October 2023 (- C-496/22 – [Brink’s Cash Solutions] 
paragraph 45), the Court stated that Article 6 of Directive 98/59/EC requires the 
Member States to ensure effective judicial protection for worker’s representatives 
and/or workers. However, the Second Chamber considers that that requirement 
relates solely to the consultation procedure under Article 2 of Directive 98/59/EC, 
in which no authority participates, and which – unlike the notification procedure 
under Articles 3 and 4 of Directive 98/59/EC – directly serves the (collective) 
protection of the employees concerned in the sense of a possible avoidance of 
redundancies (see paragraph 19 above). Nor would a different interpretation be 
compatible with the ‘alternative’ wording of Article 6 and recital 12 of Directive 
98/59/EC (‘administrative and/or judicial procedures’) as described above. 
…