BAG; 2023-06-01; 2 AZR 150/22
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2023:010623.U.2AZR150.22.0
Date: 2023-06-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0601(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff, employed by an Austrian-based aviation company (hereinafter ‘defendant 1’) since 2018, accepted a new employment contract in July 2020 and later transitioned to a Maltese-registered airline company (hereinafter ‘defendant 2’) under the same terms, when defendant 1 ceased Düsseldorf operations. In September 2020, both defendants announced mass dismissals, which the plaintiff contested as vague and socially unjustified, seeking to reinstate the employment relationship with both defendants.
His action before the Landesarbeitsgericht (hereinafter ‘the Court of First Instance’) was dismissed. The present decision is rendered on an appeal before the Bundesarbeitsgericht (hereinafter ‘the Court of Appeal’).
The Court of Appeal established that the German courts have jurisdiction under the Brussels I Regulation (recast) (1) because a labour dispute is a civil law dispute as per Article 1(1) of the Regulation. As employers are established in Member States’ territories, defendants may be sued in another Member State before the courts of the place where or from which the employee habitually carries out his work or last habitually carried out his work, following Article 20(1) and Article 21(1)(b)(i) of the Brussels I Regulation (recast) and in the alignment of the principle set by the Court of Justice of the European Union (CJEU) in Case C-804/19 (2).
The Court of Appeal then established the applicability of German law to the dispute based on Articles 3, 8 and 9 of the Rome I Regulation (3). The parties effectively agreed on the application of German law; this choice of law did not conflict with the provisions of Article 8(1)(2) of the Rome I Regulation.
The Court of Appeal assessed whether a business transfer occurred between the defendants, referencing Cases C-298/18 and C-664/17 (4). It emphasised that such a transfer entails an organised pooling of resources for economic activity continuity. In the aviation sector, material transfer within the meaning of Article 1(1) of Directive 2001/23/EC (5) is of central importance, but entry into a charter flight agreement and the continuation of operations on the previous routes with part of the staff could also constitute a business transfer, following the judgment in Case C-160/14 (6).
The Court of Appeal refused to refer the case to the CJEU. The existing case-law already provided an ‘in writing’ interpretation, accepting telex/fax as adequate documentation for recipients, as European Union law deems any graphically documented communication, whether handwritten, printed or electronic, as ‘written’, as confirmed by cases C-170/00 and C-258/16 (7). Thus, a faxed mass dismissal notification was valid.
The plaintiff’s plea was dismissed, mainly on municipal labour law grounds.
(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 (recast).
(2) Judgment of the Court of Justice of 25 February 2021, BU v Markt24 GmbH, C-804/19, ECLI:EU:C:2021:134, paragraph 41.
(3) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
(4) Judgment of the Court of Justice of 27 February 2020, Reiner Grafe and Jürgen Pohle v Südbrandenburger Nahverkehrs GmbH and OSL Bus GmbH, C-298/18, ECLI:EU:C:2020:121.
Judgment of the Court of Justice 13 June 2019, Ellinika Nafpigeia AE v Panagiotis Anagnostopoulos and Others, C-664/17, ECLI:EU:C:2019:496.
(5) Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.
(6) Judgment of the Court of Justice of 9 September 2015, João Filipe Ferreira da Silva e Brito and Others v Estado português, C-160/14, ECLI:EU:C:2015:565, paragraphs 29 et seq.
(7) Judgment of the Court of Justice of 24 January 2002, République de Finlande v Commission of the European Communities, C-170/00, ECLI:EU:C:2002:51.
Judgment of the Court of Justice of 12 April 2018, Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia, C-258/16, ECLI:EU:C:2018:252.