BAG; 2022-09-07; 5 AZR 502/21
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2022:070922.U.5AZR502.21.0
Date: 2022-09-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0907(51)_ENG_SUMJURE
JURE summary
JURE summary
An equipment electrician domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against his employer, a holding group of metal industry companies, domiciled in Hamburg (hereinafter ‘the defendant’), due to the retention of taxes hypothetically accrued in Germany during his posting in France.
During a several year-long posting in France, the plaintiff was liable for taxation exclusively in France. For the whole period, the French wage tax was lower than the German wage tax. In line with the hypothetical tax provisions, the defendant retained hypothetical tax amounts from the wage of the plaintiff each month, which the defendant did not pay to the German tax authorities based on the tax exemption of the plaintiff in relation to Germany. The defendant paid the respective wage tax to the French tax authorities. The defendant claimed that no reasons were given to reimburse the retained amounts to the plaintiff. The provisions regarding the hypothetical tax contained in the assignment agreements were legally effective as general conditions.
The Arbeitsgericht Hamburg (hereinafter ‘the Court of First Instance’), as the court seised under Article 4(1) of the Brussels I Regulation (recast) (1), dismissed the action.
Based on the plaintiff’s appeal, the Landesarbeitsgericht Hamburg (hereinafter ‘the Court of Appeal’) ordered the defendant to pay the requested amount to the plaintiff as of August 2017. With regard to the wage differences claimed for the earlier months of 2017, the Court of Appeal dismissed the claim citing the failure to meet the limitation period contained in the collective agreement.
The revisions filed by the plaintiff and the defendant with the Bundesarbeitsgericht (hereinafter ‘the Supreme Court’) were found unsubstantiated and dismissed.
Both parties were bound by the collective agreement. With regard to the limitation period of three months, solely the claims of the plaintiff concerning the period after August 2017 were made in good time. The Court of Appeal was therefore correct to partially dismiss the action concerning the period prior to August 2017.
The Court of Appeal was also correct to state that the centre of the employment relation between the plaintiff and the defendant was Hamburg for the whole period. The assignment of the plaintiff was for a definite period of time. After his work in France, the plaintiff was supposed to come back to the factory of the defendant in Hamburg. Therefore, the collective agreements which applied to the employment relation had also been applicable during the assignment in France. For this reason, the defendant was not entitled to retain the hypothetical taxes to be paid in Germany.
(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.