Judgment;Summary — ECLI:EU:C:2025:840
Date: 2025-10-30
Language of the case: German
Court formation: Fifth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-402/24 – 1 
Case C-402/24 [Sewel] i 
Request for a preliminary ruling 
Date lodged: 
10 June 2024 
Referring court: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
23 May 2024 
Applicant, appellant and appellant in the appeal on a point of law: 
BL 
Defendant, respondent and respondent in the appeal on a point of law: 
Dr A, acting as liquidator of Luftfahrtgesellschaft Walter mbH 
  
ORDER 
[…] 
In the case of 
BL 
Applicant, appellant and appellant in the appeal on a point of law, 
[v] 
Dr A, acting as liquidator of Luftfahrtgesellschaft Walter mbH 
Defendant, respondent and respondent in the appeal on a point of law, 
the Sixth Chamber of the Bundesarbeitsgericht (Federal Labour Court, Germany) 
ordered as follows following the hearing on 23 May 2024 […]: 
 
i The name of the present case is fictitious. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
2  
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 of the Treaty on the 
Functioning of the European Union (TFEU): 
1. Is the purpose of the collective redundancy notification fulfilled, and a 
penalty therefore unnecessary, if the national employment agency does 
not object to an – objectively incorrect – collective redundancy 
notification and thus considers itself sufficiently well-informed to be 
able to perform its tasks within the time limits laid down in Article 4 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’)? 
Does that apply, in any event, where the achievement of the purpose of 
Article 3 of Directive 98/59/EC is ensured by a national provision of 
employment promotion law and/or the national employment agency 
has a duty to investigate on its own initiative? 
2. If the answer to Question 1 is in the negative: Can the purpose of 
Article 3 of Directive 98/59/EC still be fulfilled if a collective 
redundancy notification that is incorrect or has not been given at all 
can be corrected, supplemented or given at a later stage after receipt of 
the notice of dismissal? 
3. If, in the event that a collective redundancy notification is incorrect or 
has not been given, the standstill period in accordance with 
Article 4(1) of Directive 98/59/EC should be the penalty for errors in 
the notification, what scope of application still remains for Article 6 of 
Directive 98/59/EC in that respect? 
II. […] [Staying of the proceedings] 
Grounds 
1 The request for a preliminary ruling concerns the interpretation of Articles 3, 4 
and 6 of Directive 98/59/EC. 
2 The request for a preliminary ruling is made in the context of dismissal 
proceedings. The subject matter of the reference concerns the interpretation of the 
Directive 98/59/EC. That interpretation is necessary in order to develop a penalty 
in national law for errors in collective redundancy procedures pursuant to 
Article 3 et seq. of Directive 98/59/EC. The part of the procedure to be carried out 
prior to collective redundancies is referred to in national law and below as the 
‘notification procedure’. 
SEWEL 
 
3 
A. Subject matter and facts of the main proceedings 
3 The applicant had been working as a captain at Luftfahrtgesellschaft Walter mbH 
(‘the debtor’), which employed around 348 people, since 2012. 
4 On 30 June 2020, the debtor decided to cease its business activities with 
immediate effect. Prior to that, it had initiated, by letter of 15 June 2020, the 
consultation procedure under Paragraph 17(2) of the Kündigungsschutzgesetz 
(Law on protection against unfair dismissal; ‘the KSchG’) – the act by which 
Article 2 Directive 98/59/EC was transposed into national law – with the captains’ 
staff committee in connection with the dismissal of those employees. 
5 By order of 1 July 2020, the insolvency court opened insolvency proceedings 
against the debtor. As the court-appointed liquidator, the defendant assumed the 
position of employer by virtue of his office and performed the function of 
employer for the duration of the insolvency proceedings. 
6 By letter of 1 July 2020, the defendant gave a collective redundancy notification. 
No final observations of the workers’ representatives were enclosed. The 
alternative setting out of the stage reached in consultations, which is possible 
under national law, was also inadequate. It was merely noted that the consultation 
procedure had been initiated and would be continued. There was no information 
on the substance of the discussions. 
7 The Employment Agency acknowledged receipt of the defendant’s collective 
redundancy notification, noting that it was ‘only’ acknowledging receipt of the 
documents. 
8 After terminating the employment of the cabin and ground crew, for whom no 
workers’ representation had been created, at the beginning of July 2020, the 
defendant terminated the employment of the applicant and other pilots by letter of 
29 July 2020 in the context of collective redundancies. The dismissals were 
announced with the notice period of three months to the end of the month pursuant 
to Paragraph 113 of the Insolvency Code, which is applicable in the event of 
insolvency. 
B. Legal framework 
I. The Bürgerliches Gesetzbuch 
9 The Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’) is worded, in extract, as 
follows: 
‘Paragraph 134 
Statutory prohibition 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
4  
Any legal act contrary to a statutory prohibition shall be void except as 
otherwise provided by law.’ 
II. The Kündigungsschutzgesetz 
10 Section 3 of the Kündigungsschutzgesetz also serves to implement Directive 
98/59/EC. In that respect it provides, in extract: 
‘Paragraph 17 
Obligation to notify 
(1) The employer is under an obligation to notify the Employment Agency 
(Agentur für Arbeit) before it makes redundant 
… 
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, 
… 
over a period of 30 calendar days. … 
(3) … The notice referred to in subparagraph 1 shall be given in writing and 
shall enclose the observations of the works council on the redundancies. If 
the works council has not made any observations, the notice shall be valid if 
the employer can demonstrate that the works council was notified at least 
two weeks prior to the notice given in accordance with the first sentence of 
subparagraph 2 and the stage reached in consultations. … 
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. 
… 
Paragraph 20 
SEWEL 
 
5 
Decisions of the Employment Agency 
(1) The decisions of the Employment Agency pursuant to Paragraph 18(1) 
and (2) shall be made by its management or a committee (decision-
maker). …’ 
III. Employment promotion law 
11 Book III of the Sozialgesetzbuch (Social Code; ‘the SGB’) is worded as follows, 
in extract: 
‘Paragraph 2 
Cooperation with the employment agencies 
… 
(3) Employers shall inform the employment agencies at an early stage of 
any operational changes that may have an impact on employment. This 
includes in particular notifications about 
… 
4. projected reductions in or relocations of operations and the associated 
effects and 
5. plans as to how dismissals of employees can be avoided or transitions 
to other employment relationships can be organised. 
… 
Paragraph 38 
Rights and obligations of persons seeking training and employment 
(1) Persons whose … employment relationship ends shall undertake to 
register as jobseekers with the Employment Agency at least three months 
before the end of the employment relationship, stating their personal details 
and the date of termination of the … employment relationship. If less than 
three months elapse between the date on which the termination date is 
known and the termination of the … employment relationship, they must 
register within three days of the date on which the termination date is 
known. The obligation to register exists irrespective of whether or not 
continuation of the employment relationship is claimed before a court or 
envisaged by the employer. … 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
6  
(1a) The competent employment agency shall conduct an initial advice and 
placement interview with the person registered as a jobseeker in accordance 
with paragraph 1 immediately after the jobseeker’s registration, …’ 
IV. Relevant provisions of EU law 
12 In the view of the referring court, the provisions of Articles 3, 4 and 6 of Directive 
98/59/EC are decisive. 
C. Need for a decision of the Court of Justice and analysis of the 
questions referred 
I. Relevance to the decision 
13 The defendant gave the notification before the consultation procedure had ended. 
Furthermore, he did not enclose final observations of the workers’ representatives 
with the notification or set out the stage reached in consultations in terms of 
substance. The resolution of the dispute turns solely on whether the dismissal is 
void on account of those infringements of the obligation to give a proper 
collective redundancy notification. This Chamber believes that there are no other 
possible grounds for invalidity under national law. 
II. Preliminary remark on the need for preliminary ruling proceedings: 
14 1. National law does not provide for an explicit penalty where an employer 
has failed to give a collective redundancy notification or has given an incorrect 
notification. To date, the Federal Labour Court has assumed that the legal 
consequence for such errors is to be inferred from Paragraph 134 of the BGB), 
meaning that dismissals are void. The employment relationship continues until a 
new, effective notification of termination is given. Prior to that termination, a new 
consultation and notification procedure must be carried out if the thresholds laid 
down in Paragraph 17(1) of the KSchG are exceeded. As a rule, remuneration 
must be continued or paid in arrears until the employment relationship is 
terminated. 
15 (a) The Sixth Chamber does not intend to adhere to that case-law. Nullity of 
the dismissal as a legal consequence of errors in the notification procedure is a 
penalty which satisfies principle of effet utile. However, it infringes the principle 
of proportionality to be observed by the Member States when setting penalties, 
also within the scope of the Directive 98/59/EC (see judgment of the Court of 
Justice of 8 June 1994 – C-383/92 – [Commission v United Kingdom] 
paragraph 40). First, it is unsuitable as a penalty because it is set at the individual 
employment contract level, even though the employment agency cannot and 
should not influence the employer’s decision-making process which led to the 
dismissal in the notification procedure. Secondly, it is also not appropriate 
because, contrary to the rationale of Directive 98/59/EC (judgment of the Court of 
SEWEL 
 
7 
Justice of 21 December 2016 – C-201/15 – [AGET Iraklis] paragraph 31), it 
interferes with the employer’s management freedom. The employer is 
permanently prohibited from implementing the projected dismissals at the desired 
time, even though that is precisely not the aim of the obligations on it in the 
notification procedure. Errors in the notification procedure are thus penalised 
more severely than other errors in German law on unfair dismissal (judgment of 
the Federal Labour Court of 14 December 2023 – 6 AZR 157/22 (B) – 
paragraphs 29, 33, and 35 et seq.). 
16 (b) Under national law, the Sixth Chamber can only make this change to case-
law if the Second Chamber, which also assumed that errors in the notification or 
failure to notify would result in the invalidity of the dismissal, agrees. The 
relevant procedure is laid down in Paragraph 45 of Arbeitsgerichtsgesetz (Law on 
labour courts; ‘the ArbGG’): 
‘Paragraph 45 
Grand Chamber 
(1) A Grand Chamber shall be established at the Bundesarbeitsgericht 
(Federal Labour Court). 
(2) The Grand Chamber shall decide where a chamber wishes to deviate 
from the decision of another chamber or the Grand Chamber on a matter of 
law. 
(3) A submission to the Grand Chamber shall only be admissible if the 
chamber whose decision is to be deviated from has declared, in response to a 
question submitted by the adjudicating chamber, that it adheres to its 
opinion. … The respective chamber shall rule on the question and the 
answer by means of an order in the composition required for judgments. 
…’ 
17 That procedure was initiated by the Sixth Chamber by its question of 
14 December 2023 (– 6 AZR 157/22 (B) –). By order of 1 February 2024 (– 2AS 
22/23 (A) –, at the Court of Justice – C-134/24 –), the Second Chamber, as the 
chamber to which a question had been submitted, referred questions to the Court 
of Justice in connection with the interpretation of the Directive 98/59/EC in a 
preliminary ruling procedure. 
18 2. The Sixth Chamber considers a referral to the Court of Justice to answer 
the questions analysed under Section C, subsections III to V, to be necessary 
despite the order for reference of the Second Chamber of the Federal Labour 
Court of 1 February 2024 (– 2AS 22/23 (A) –) on the legal consequences of errors 
in the collective redundancy notification procedure. 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
8  
19 (a) According to its settled case-law, a question may be referred to the Court 
of Justice under the second paragraph of Article 267 TFEU only if there is a case 
pending before it and if it is called upon to give judgment in proceedings intended 
to lead to a decision of a judicial nature. It is appropriate to determine whether a 
body may refer a case to the Court on the basis of criteria relating both to the 
constitution of that body and to its function (judgment of the Court of Justice of 
7 May 2024 – C-115/22 – paragraph 36 and the case-law cited). The decisive 
factor in that regard is the specific nature of the functions which it exercises in the 
particular legal context in which it is called upon to make a reference to the Court. 
A body can therefore be classified or not classified as a ‘court or tribunal’ within 
the meaning of Article 267 TFEU, depending on whether it performs judicial or 
other functions, in particular of an administrative nature (judgment of the Court of 
Justice of 3 May 2022 – C-453/20 – [CityRail] paragraph 43 and the case-law 
cited). For example, the Court of Justice refused to consider a local court a ‘court 
or tribunal’, in so far as it was dealing with the appointment of a liquidator, as 
there are no adversarial proceedings between two parties (order of the Court of 
Justice of 12 January 2010 – C-497/08 – [Amiraike Berlin] paragraph 17 et seq.). 
In the case of a bar association the Court of Justice also found that there was no 
entitlement to make a reference because it only had before it a request for a 
declaration relating to a dispute between a member of the bar and the courts or 
tribunals of another Member State (judgment of the Court of Justice of 18 June 
1980 – 138/80 – [Borker] paragraph 4). 
20 (b) Against that background, the referring Chamber has concerns as to whether 
the Second Chamber of the Federal Labour Court has the status of a ‘court or 
tribunal’ within the meaning of the second paragraph of Article 267 TFEU in the 
proceedings pursuant to Paragraph of 45(3) of the ArbGG and is therefore entitled 
to make a referral to the Court of Justice. 
21 The concerns arise from the fact that the dispute to be resolved over the validity of 
the termination of the employment relationship between the applicant and the 
defendant is still pending solely before the chamber submitting a question 
pursuant to the first sentence of Paragraph 45(3) of the ArbGG – in this case the 
Sixth Chamber of the Federal Labour Court – (see, as regards that requirement, 
order of the Court of Justice of 22 January 2002 – C-447/00 – [Golto] 
paragraph 17) and not before the Second Chamber. The question addressed to the 
latter must be answered independently of the particular dispute regarding the 
dismissal. The particular legislative context on whose basis the entitlement to 
make a reference of the Second Chamber, to which the question is submitted, is to 
be assessed is the answer to the abstract question put to it, which spans all 
disputes, as to whether it adheres to a particular opinion. For that reason, the 
question submitted pursuant to the first sentence of Paragraph 45(3) of the ArbGG 
does not involve two adversarial parties. The parties to the dispute pending before 
the Sixth Chamber regarding the validity of the termination of the employment 
relationship are not heard by the Second Chamber in the proceedings pursuant to 
Paragraph 45(3) of the ArbGG, nor is a hearing held before the Second Chamber 
in which the parties can present their arguments as to whether a particular opinion 
SEWEL 
 
9 
is abandoned (as regards that aspect, judgment of the Court of Justice of 17 July 
2014 – C-58/13 and C-59/13 – [Torresi] paragraph 27). In addition, the parties 
cannot themselves initiate proceedings in accordance with Paragraph 45 of the 
ArbGG (see, in that respect, order of the Court of Justice of 5 March 1986 – 
318/85 – [Greis Unterweger] paragraphs 2 and 4). That can only be done by the 
chamber with jurisdiction to resolve the dispute, in this case the Sixth Chamber of 
the Federal Labour Court. Rather, the proceedings pursuant to Paragraph 45(3) 
ArbGG are purely inter-court interim or preliminary proceedings, the conduct of 
which is a condition of admissibility for the submission of a question to the Grand 
Chamber of the Federal Labour Court (first sentence of Paragraph 45(3) of the 
ArbGG). The answer of the chamber to which a question was submitted would 
then not be given in proceedings seeking a decision of a judicial nature. There 
would be no resolution of the situation at issue having the force of res judicata 
vis-à-vis the parties to the proceedings (in that regard, judgment of the Court of 
Justice of 18 February 2017 – C-503/15 – [Margarit Panicello] paragraph 34) 
and thus no functional quality as a court or tribunal. Nor is that assessment 
precluded by the fact that, according to the case-law of the Court of Justice, 
provisions of national law which require the matter to be brought before a higher 
panel of judges (for example, the Grand Chamber) in order to ensure uniform 
case-law cannot restrict the discretion of the seised national court to refer the case 
to the Court of Justice (judgment of the Court of Justice of 5 April 2016 – 
C-689/13 – paragraph 32 et seq.). In accordance with the foregoing, the court or 
tribunal in that sense would be the Sixth Chamber of the Federal Labour Court, 
which is submitting a question, and not the Second Chamber thereof. 
22 However, without an interpretation of Articles 3, 4(1) to (3) and 6 of Directive 
98/59/EC by the Court of Justice, the Second Chamber cannot answer the question 
submitted by the Sixth Chamber concerning the penalties for errors in the 
notification procedure (judgment of the Federal Labour Court of 1 February 
2024 – 2 AS 22/23 (A) – paragraph 7 et seq.). The Sixth Chamber therefore 
considers that it is under an obligation to refer the matter to the Court of Justice 
itself so that the Court of Justice can interpret Directive 98/59/EC as required, 
irrespective of issues relating to the admissibility of the referral to the Court of 
Justice to be examined of its own motion. Subsequently, the consequences of an 
incorrect collective redundancy notification for the dismissal under national law 
can be determined in the procedure provided for in Paragraph 45 of the ArbGG. 
III. First question: 
23 The first question referred corresponds to the fourth question referred by the 
Second Chamber of the Federal Labour Court in Case C-134/24. 
24 1. In that respect, the factual and legal position under national law is as 
follows: The employment agency routinely acknowledges receipt of the collective 
redundancy notification and often uses wording such as ‘Your abovementioned 
notification was received here on …. The period of one month set in 
Paragraph 18(1) of the KSchG (sometimes also worded as: to be set) thus begins 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
10  
on … and ends on …’. However, as the present case shows, there are also letters 
from the employment agencies in which only the receipt of the notification and 
the documents attached thereto is expressly acknowledged. Occasionally, the 
employment agency also adopts a decision on the duration of the standstill period, 
that is to say issues a standstill period decision. In the majority of cases, however, 
there no issuing of such a decision, which is to be issued by the decision-makers 
referred to in Paragraph 20(1) of the KSchG and not by the official issuing the 
acknowledgement of receipt. The authority does nothing in that respect. 
According to the case-law of the Second and Sixth Chamber of the Federal 
Labour Court, the mere acknowledgement of receipt of the collective redundancy 
notification is not an administrative act which would be binding on the labour 
courts when examining whether the notification is incorrect. This also applies to a 
standstill period ‘set’ or ‘to be set’ in the acknowledgement of receipt without an 
examination of the facts. Even a standstill period decision does not prevent the 
labour courts from examining the invalidity of the collective redundancy 
notification and penalising errors in the notification. Such a decision is binding on 
the courts only as regards the end of the standstill period (settled case-law, 
judgments of the Federal Labour Court of 13 February 2020 – 6 AZR 146/19 – 
paragraph 111, BAGE 169, 362; 22 September 2016 –  2 AZR 276/16 – 
paragraph 33, BAGE 157, 1; and 28 June 2012 – 6 AZR 780/10 – paragraph 65 
et seq., BAGE 142, 202). Neither the employees (judgment of the 
Bundessozialgericht (Federal Social Court, Germany) of 30 October 1959 – 7 
RAr 19/57 – BSGE 11, 14; and of 15 October 2012 – B 11 AL 64/12 B –) nor the 
works council (judgment of the Federal Labour Court of 28 June 2012 – 6 
AZR 780/10 –; (judgment of the Federal Social Court of 14 August 1980 – 7 RAr 
68/79 -) can bring an action against such a decision. They are not parties to the 
proceeding under Paragraphs 18 and 20 of the KSchG. That concerns only the 
legal relationship between employer and employment agency (judgment of the 
Federal Social Court of 14 August 1980 – 7 RAr 68/79 –). 
25 2. According to the legal position set out above, in the vast majority of 
collective redundancies there are no official findings as to the end of the standstill 
period which are binding on the labour courts. The view of the employment 
agency that the notification has been made properly is not binding in any case. For 
the Sixth Chamber, however, the question arises as to whether the purpose of the 
notification procedure is achieved if the employment agency examines the 
collective dismissal notification, does not object to it, and thus indicates that it 
considers itself to be sufficiently well-informed to fulfil its active role in the 
notification procedure (in that respect, judgment of the Court of Justice of 13 July 
2023 – C-134/22 – [G GmbH] paragraph 34 et seq.). In that case, no penalty 
would be required in national law and thus the follow-up question raised in 
paragraph 21 of the order for reference in Case C-134/24 concerning the 
requirement relating to effective and efficient judicial protection (Article 6 of 
Directive 98/59/EC and Article 47 of the Charter of Fundamental Rights of the 
European Union (‘the Charter’)) against errors in the notification procedure 
would not arise. 
SEWEL 
 
11 
26 In answering the question, it could also be relevant whether the achievement of 
the aim pursued by Articles 3 and 4 of Directive 98/59/EC can be ensured by 
national provisions of employment promotion law which provide for the 
employer’s involvement in preventing or shortening unemployment, even if they 
are laid down outside the collective redundancy procedure formally implemented 
by Paragraph 17 et seq. of the KSchG. One such provision in German law is 
Paragraph 2 of Book III of the Social Code. The purpose of that provision is to 
improve cooperation between employers, employees and employment agencies. 
The employer is encouraged to become involved at an early stage in order to avoid 
unemployment as far as possible and limit the duration of unemployment as far as 
possible in the interests of solidarity (judgment of the Federal Labour Court of 
29 September 2005 – 8 AZR 571/04 – at II 1 b bb (3) of the grounds, BAGE 116, 
78). In addition, the employment agency is also informed at an early stage about 
employees entering the labour market as a result of the obligation on the employee 
under Paragraph 38(1) of Book III of the Social Code to register as a jobseeker 
well before the end of the notification period, which is to be followed immediately 
by an initial advice session under Paragraph 38(1) of Book III of the Social Code. 
It could also be of relevance that the employment agency is required to investigate 
the facts of its own motion in a collective redundancy procedure (judgment of the 
Federal Labour Court of 1 February 2024 – 2 AS 22/23 (A) – paragraph 12). 
IV. Second question: 
27 1. The second question referred corresponds to the first to third question in 
Case C-134/24. 
28 (a) If the standstill period only starts after a proper collective redundancy 
notification (judgment of the Federal Labour Court of 1 February 2024 – 2 AS 
22/23 (A) – paragraph 16), that standstill period could be lifted, with regard to an 
announced dismissal in the event that a notification has not been given or is 
incorrect, only if it is possible to give a notification at a later stage. Otherwise, a 
new notice of dismissal would always have to be given. 
29 (b) Unlike the Second Chamber of the Federal Labour Court, the Sixth 
Chamber doubts that the aim pursued by Article 3 of Directive 98/59/EC, to make 
collective redundancies subject to prior notification of the competent authority 
(judgment of the Court of Justice of 21 December 2016 – C-201/15 – [AGET 
Iraklis] paragraph 28 and the case-law cited), can still be fulfilled if that can be 
done at a later stage following receipt of the notice of dismissal in the event that a 
collective redundancy notification is incorrect or has not been given. 
30 First, according to the case-law of the Court of Justice (judgment of the Court of 
Justice of 27 January 2005 – C-188/03 – [Junk] paragraph 54), the notification 
must have been given (properly) before the notice of dismissal is received so that 
the employment agency can explore, on the basis of all the information forwarded 
to it by the employer, the possibilities of limiting the negative consequences of the 
redundancies (judgment of the Court of Justice of 13 July 2023 – C-134/22 – [G 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
12  
GmbH] paragraph 35). It would then no longer appear to be possible to amend 
the redundancy notification after the notice of dismissal has already been received. 
31 Secondly, the notification must be given at a later stage with the information on 
which the original notification was based or – in the absence of a notification – 
should have been based. In essence, there is correction of incorrect information or 
supplementation of missing information following the employer’s decision to 
dismiss. Otherwise, there is no issuing of a notification at a later stage, but the 
issuing of a new notification under new parameters. However, at the time when 
the notification is made at a later stage, the actual circumstances have generally 
changed in comparison with the circumstances on which the original notification 
made, or to be made, was based. The employees whose projected collective 
redundancy was not notified or was notified incorrectly have been dismissed for a 
long period of time in the interim and have often already been found, or have 
themselves found, employment during that time. The local situation on the labour 
market may have changed, for example as a result of further collective 
redundancies by other employers. The passage of time therefore influences the 
socio-economic effects of the collective redundancy and the response required 
from the employment agency. A notification made at a later stage with the original 
information therefore often does not allow the employment agency to search 
meaningfully for a solution to the problems raised by the collective redundancies, 
which is its task (judgment of the Court of Justice of 13 July 2023 – C-134/22 – 
[G GmbH] paragraph 35). 
32 (c) If the standstill period laid down in Article 4 of Directive 98/59/EC starts 
only when the notification fulfils the requirement of Article 3(1) of Directive 
98/59/EC, the duration of standstill period and thus the ‘postponement’ of the 
termination effect would be unforeseeable even if, despite the above concerns, it 
were possible to give the notification at a later stage in the sense of a correction or 
supplement. Errors in the notification would routinely only be discovered in court 
proceedings after a considerable period of time. In many cases, the standstill 
period could then be lifted more quickly by a new notice of dismissal which no 
longer relates to collective redundancy on account of changed circumstances. 
33 (d) In the view of the Sixth Chamber, an unlimited or indefinite standstill 
period would interfere with employer’s management freedom. However, that 
freedom is not restricted by Directive 98/59/EC (see, in that respect, judgment of 
the Court of Justice of 21 December 2016 – C-201/15 – [AGET Iraklis] 
paragraph 30 et seq.). The standstill period does not affect the employer’s right to 
terminate contracts (Opinion of Advocate General Tizzano of 30 September 
2004 – C-188/03 – [Junk] paragraph 64 et seq.). In the view of the Sixth 
Chamber of the Federal Labour Court, such an effect of the standstill period 
would therefore be disproportionate for the same reasons as the nullity of the 
dismissal (in that regard, paragraph 15) and could therefore not be laid down as a 
penalty in national law. 
SEWEL 
 
13 
34 2. Furthermore, in the view of the Sixth Chamber there is no legal basis in 
EU law for suspending the effect of the dismissal through the standstill period laid 
down in Article 4 of Directive 98/59/EC (judgment of the Federal Labour Court 
of 1 February 2024 – 2 AS 22/23 (A) – paragraph 14). According to the case-law 
of the Court of Justice, neither the substantive conditions under which the 
employer can carry out collective redundancies or the means of protection against 
unlawful collective redundancies fall within the scope of Directive 98/59/EC, but 
remain a matter for the Member States (judgment of the Court of Justice of 
17 March 2021 – C-652/19 – [Consulmarketing] paragraph 42; and 21 December 
2016 – C-201/15 – [AGET Iraklis] paragraph 33). In that case, national law alone 
determines whether and when a dismissal becomes effective. 
V. Third question: 
35 The third question referred concerns the relationship between Articles 4 and 6 of 
Directive 98/59/EC. 
36 1. The Sixth Chamber concludes that no penalties for errors in the 
notification procedure can be inferred from Article 4(1) of Directive 98/59/EC. 
The standstill period pursues an aim of labour market policy (judgment of the 
Court of Justice of 27 January 2005 – C-188/03 – [Junk] paragraph 47 et seq.; as 
regards national law, judgment of the Federal Labour Court of 22 September 
2016 – 2 AZR 276/16 – paragraph 24, BAGE 157, 1). The effectiveness and effect 
of a dismissal cannot be influenced by this. It merely creates an entitlement to 
employment until the expiry of the standstill period under the first half of the first 
sentence of Article 4(1) or Article 4(3) of Directive 98/59/EC. The provision of 
Article 4 of Directive 98/59/EC thus appears to the Sixth Chamber to be merely a 
means of implementing the aim, but not the penalty. Otherwise, it would be 
questionable as to what independent relevance Article 6 of Directive 98/59/EC 
could still have in the notification procedure. 
37 2. By way of clarification, the Sixth Chamber points out that it is of the view 
that the penalty for errors in the notification procedure must be set by the 
legislature in employment promotion law (judgment of the Federal Labour Court 
of 14 December 2023 – 6 AZR 157/22 (B) – paragraphs 7 and 22). However, it 
does not therefore follow that such errors must remain entirely without 
consequences until a legal penalty is created. Article 6 of Directive 98/59/EC 
could be construed as meaning that, until the legislature acts, a penalty has to be 
established by case-law. However, the labour courts are barred from imposing a 
penalty under employment promotion law. The penalty would therefore have to be 
inferred from the law on unfair dismissal. Since, in the view of the Sixth 
Chamber, the standstill period and any other penalty which calls into question the 
validity of the dismissal are ruled out for the reasons stated, the only remaining 
point of reference for a penalty would be the notification period. Taking the 
fundamental idea of protection against collective redundancy as a basis, the 
suspension of the notification period could be regarded as a suitable and sufficient 
penalty for errors in the notification procedure prior to the legislature taking 
REQUEST FOR A PRELIMINARY RULING OF 23. 5. 2024 – CASE C-402/24 
 
14  
action. According to that fundamental idea, the temporary standstill period is 
intended to postpone collective redundancies. During that time, employers are to 
look for employment opportunities for the employees. In addition, the 
employment agency is to gain time to find employment from those to be made 
redundant. In the broader context, the aim is to avoid unemployment in the 
general interest. If the employment agency is unable to fulfil its task, or can do so 
only to a limited extent, because a collective redundancy notification has not been 
given or is incorrect, an extension of the employment relationship would be 
conceivable as a penalty in line with the fundamental idea of protection against 
collective redundancy. On the one hand, the employment agency would then have 
more time to find employment for the employees concerned and, on the other 
hand, the employer would be required to employ those employees for longer. 
38 However, the suspension of the notification period would then have to be limited 
in order to leave the employer’s management freedom unaffected and not exert 
any indirect pressure to announce new dismissals. Since, under Article 4 of 
Directive 98/59/EC, the employment agency has, to fulfil its tasks, only a period 
of 30 days, which can be extended to a maximum of 60 days – of which use has 
been made in national law through Paragraph 18(2) of the KSchG –, the 
suspension would have to be limited accordingly. As a rule, under national law the 
notification period would then be suspended for one month in the event that 
notifications are incorrect and for two months in the event that notifications have 
not been given. Such a penalty would be based on the maximum duration of the 
extension of employment in the event of proper notification. The employee could 
have the effectiveness of the notification reviewed by a court in the dismissal 
proceedings and therefore the requirements laid down Article 6 of Directive 
98/59/EC and Article 47 of the Charter would also be satisfied. 
[…]