Transfer of operations (Germany)

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The legal term of the transfer of business characterizes the change of the owner of a business or part of a business through a legal agreement in the broadest sense. The corresponding European legal directives from 1977 and 2001 have led to an extensive standardization of this term in the entire legal area of ​​the EU and to an alignment of the individual national legal provisions that regulate the rights and obligations of employers and employees in the event of a company transfer. A corresponding regulation was first included in German labor law in 1972 with Section 613a BGB , which was later implemented through the implementation of Directive 77/187 / EEC of February 14, 1977, and most recently through Directive 2001/23 / EC of 23 March 2001 was added.

Sense and purpose

The transfer of business does not lead to the termination of the employment relationship if the business or part of the business is transferred to another owner. Rather, the meaning and purpose of the regulation in Section 613a of the German Civil Code (BGB) is to provide complete protection for the employees concerned . Their employment relationships are "automatically" (by law) transferred to the new company owner. Furthermore, the social acquis will be preserved to some extent (see below under legal consequences). The provision also contains liability regulations for employee claims against the old and the new company owner. Also important are the provisions of Paragraphs 5 and 6 added to Section 613a of the German Civil Code on April 1, 2002. 6 with the detailed information rights in order to give the employees affected by a transfer of operations a basis for decision-making in order to exercise their right of objection.

The background to this regulation was the loophole in protection against dismissal that existed until 1972: Under the old law, a business owner could sell or lease his business to a subsidiary founded for this purpose and thus part or wholly separate from his workforce in order to bypass the dismissal protection act .

scope of application

Is applicable § 613a BGB to all at the time of the transfer of business law existing employment contracts, so all employees (including officers). Freelance workers, commercial agents, board members (managing directors and board members) and civil servants do not fall within the scope of the law. The opinion was controversial (and rather rejected in German case law) as to whether the employment relationships of the temporary or agency workers employed in the company should also be taken into account within the framework of Section 613a of the German Civil Code (BGB), or whether these must also be passed over. A more recent decision by the European Court of Justice now raises doubts as to whether these employment relationships can also be disregarded in the future.

Requirements for a transfer of operations

Change of ownership

A transfer of business only occurs if there is a change in the person who exercises organizational and management power over the business under labor law , regardless of whether it is a natural or a legal person . The regulation is also applicable to the takeover of facilities within the public administration, the privatization of public facilities or the transfer of privatized facilities back to a public institution. A mere change in the legal form of a business owner or a change of shareholders in a GmbH is not sufficient . Section 613a of the German Civil Code (BGB ) also generally applies in the event of a merger, split or transfer of assets (pursuant to Section 324 UmwG ).

business

For a long time, the definition of the second constituent feature of the transfer of operations or parts of operations was controversial in the case law. Based on the definition of Directive 2001/23 EC, transition i. S. d. Guideline for the transition of an economic unit that preserves its identity in the sense of an organized pooling of resources for the pursuit of a main or secondary economic activity. On the basis of this definition, the European Court of Justice (ECJ) has decided in its case law whether there is an economic entity that has retained its identity despite the change in ownership. For the examination of this feature, the European Court of Justice took into account all the facts characterizing the relevant process in the context of a comprehensive overall assessment. He has given up his previous case law after the Christel Schmidt decision and is now setting up an overall assessment as part of the so-called seven-point test

  • the type of company or establishment concerned,
  • the transfer or non-transfer of tangible assets (buildings, movable goods),
  • the value of the intangible assets at the time of transition,
  • the takeover or non-takeover of the main workforce ,
  • the transfer or non-transfer of customers , as well as
  • the degree of similarity between the activity performed before and after the transition and
  • the duration of a possible interruption of this activity.

In its earlier case law, the Federal Labor Court (BAG) essentially focused on whether the purchaser took over the essential material resources . The workers themselves did not see it as a resource. For the first time, with its decision of May 22, 1997, the BAG endorsed the case law of the ECJ. In the place of the earlier operating term, the feature of the permanent economic unit has taken place in German case law and the preservation of the identity of this unit after the change of ownership is the decisive criterion for the legal consequences of Section 613a BGB.

Up until recently, the Federal Labor Court has worked out the cases in which a transfer of operations is to be assumed in a wide variety of industries and businesses as part of an overall assessment of all the circumstances of the business concerned. The case law of the BAG assumes that there is no transfer of business if the acquirer only continues a specific activity without taking over a permanent economic unit with a specific organizational structure. In these cases, there is a mere functional succession that does not represent a transfer of operations or parts of operations.

Legal transaction

Another prerequisite for the applicability of Section 613a BGB is that the transfer comes about through a legal act (i.e. a civil law contract). If the transfer is based on a law or an administrative act (as in cases of public legal succession and legal succession), Section 613a BGB should not be applicable. It is not necessary, however, that the transfer of business is only triggered by a single legal transaction; the change of ownership can instead also result from a bundle of legal transactions, including several legal transactions with several third parties (if, for example, naming and trademark rights in a contract between the seller and the buyer transfer, operating systems are acquired through intermediary machine dealers and the operating property by means of a lease agreement with the property owner). There is not even a need for a contract between the old and the new business owner; the acquisition of the business through any kind of legal transaction is sufficient (for example: leasing a restaurant previously operated by another tenant exclusively through a contract with the owner).

Legal consequences of the transfer of operations

Transfer of the employment relationship (§ 613a Abs. 1 S. 1 BGB)

According to Section 613a of the German Civil Code, the most important legal consequence is that the entire employment relationship , i.e. with all rights and obligations, is transferred to the purchaser by virtue of the law, and the previous employment relationship also applies to the new employer. There is no need to sign a new employment contract. This grandfathering is additionally safeguarded by a ban on terminating an employment relationship due to the transfer of business.

After a transfer of business, the elements of the employment contract can be changed at any time - also to the detriment of the employees - in individual contracts by mutual agreement. The one-year change block from Section 613a, Paragraph 1, Sentence 2 of the German Civil Code (BGB) does not contradict this, because it only relates to those working conditions that were previously regulated under collective law in a directly applicable collective agreement or a works agreement and that are not superseded by collective law regulations at the purchaser.

The members of a company that is transferred to a new owner as a result of insolvency cannot, according to a decision of the highest court, be required to waive wages as a condition for the takeover. Such a regulation would be an inadmissible circumvention of mandatory statutory law.

Continuation of the collective bargaining agreement and works agreement (Section 613a Para. 1 S. 2 - 4 BGB)

Continued validity of collective agreements

Individual legal reference to a collective agreement

The rights and obligations to which the purchaser enters also include the claims from a collective agreement that is to be applied on the basis of an employment contract reference to the same extent as before the transfer of business. A static reference (e.g. “the provisions of collective agreement XY in the version applicable at the time of the conclusion of the contract apply”) continues to apply statically, for a small dynamic reference (e.g. “ the provisions of collective agreement XY apply to the employment relationship in its currently valid version Application ”), the same applies accordingly.

If the employment contract contains a large dynamic reference (e.g. "The terms of the respective collective agreements applied in the company in their currently valid version apply to the employment relationship") and a different collective agreement applies to the buyer than to the seller, apply from the date of Transfer of business the collective agreements of the acquirer, even if they are less favorable for the employee.

Collective law reference to a collective agreement

That to operation transition by virtue of mutual working conditions tariff bondage have been considered mandatory and directly apply further, even if the purchaser is bound to the same collective agreements. The same applies if and to the extent that the company falls within the scope of a generally binding collective agreement.

Transformation of the collective agreement into the employment contract

If the company acquirer is not bound by collective bargaining agreements, the contents of the collective agreement that was previously mandatory due to mutual collective bargaining are transformed into the employment contract in accordance with Section 613a, Paragraph 1, Clause 2 of the German Civil Code. The contents of the collective agreement become part of the employment contract.

In these cases, the change lock for one year applies. The collective law claims transformed into the employment contract may not be changed to the detriment of the employee within one year.

Switching from one tariff area to another

If the purchaser is bound by another collective agreement that was concluded with a trade union to which the employee also belongs, this collective agreement applies, even if this should worsen working conditions to the disadvantage of the employee. The change lock does not apply.

The same happens if the transfer of operations is accompanied by a change in the company's branch. If the transferred company is subject to collective bargaining agreements and the contracting union is the same as that which was already responsible for the previous sector, then the possibly worse conditions of the new sectoral tariff take effect immediately for the members of the contracting union.

Continuation of works agreements

Insofar as transferring employment relationships are determined by regulations in company agreements, these regulations lose their immediate and mandatory effect with the transfer of business and are included in the employment contracts of the transferring employees with the content that they had at the time of the transfer of business. Before the end of one year after the transfer of operations, changes to such transferred regulations to the detriment of the employee are not possible either by means of a change notice or an amendment contract. Such agreements are void. This individual legal continuation of these collective law regulations is excluded if another company agreement already exists with the company purchaser on the relevant issues. If a works council already exists in the receiving company and corresponding works agreements are in place, these works agreements supersede the previous works agreements in the seller's company, regardless of whether they are more favorable or less favorable.

Liability for employee claims in the event of a transfer of business (Section 613a Paragraphs 2, 3 BGB)

Liability of the business purchaser

The (part) owner of the business is liable as the new employer (§ 613a Paragraph 1 Sentence 1 BGB) for all outstanding claims of the employee - including claims that arose and were due before the transfer of the company.

Liability of the business seller

According to Section 613a (2) sentence 1 of the German Civil Code (BGB), the (partial) seller of the business is liable for all obligations towards the employee if they arose before the transfer of business and are due before the end of one year after the transfer of business, in addition to the business purchaser as joint debtor. The seller is jointly and severally liable for claims that were due before the transfer of business. For obligations that arose before the transfer of operations but which are only due after the transfer of operations, he is only liable proportionally to the extent of the part of the assessment period that has expired at the time of the transfer (Section 613a (2) sentence 2 BGB).

The seller is not liable for obligations arising after the transfer of operations, not already under Section 613a of the German Civil Code (BGB), but possibly on the basis of other grounds for claims.

Section 613a para. 2 BGB does not apply if a legal person or a commercial partnership expires through conversion (Section 613a para. 3 BGB).

With regard to the applicability of § 613a BGB, a distinction must be made between an acquisition before the opening of bankruptcy and an acquisition after the opening of insolvency : In the case of an acquisition before the opening of insolvency, § 613a BGB applies without restriction. In the event of a transfer of business after the opening of insolvency, § 613a BGB also applies in principle according to the case law of the BAG in accordance with Community law, but in the teleological reduction of § 613a BGB, the acquirer is not liable for old liabilities from the time before the opening of insolvency in the case of the acquisition of a business after the opening of insolvency.

The internal relationship between the company seller and the company purchaser

Section 613a BGB does not regulate the question of who is ultimately responsible for the liabilities towards the employee in the so-called internal relationship between the seller and buyer. This is left to the private, autonomous agreement between buyer and seller.

Ban on termination due to the transfer of business (Section 613a Paragraph 4 BGB)

The ban on resigning due to the transfer of business does not affect permissible termination or change dismissals for other reasons, for example in the case of a rationalization concept that is implemented by the business vendor in advance of a planned business transfer. In the event of insolvency, according to a decision by the Federal Labor Court, it should even be permissible for the seller to justify redundancies despite a planned transfer of operations using a rationalization concept that the buyer can only implement . However, the prerequisite is that the implementation of the concept has already taken on tangible forms at the time the notice of termination is received.

Duty to inform and right of objection (§ 613a Paragraph 4, 5 BGB)

overview

In accordance with Section 613a (5) of the German Civil Code (BGB), which was newly incorporated into the law with effect from April 1, 2002 , the employer is obliged to inform the employees affected by the transfer of the transfer of operations, its timing, the reason for the transfer and the consequences of the transfer for the employees teaching. Every employee can object to the transfer of his employment relationship in writing within one month of this notification. If an employee objects in good time, his employment relationship will not be transferred to the acquirer, but will continue to be an employee of the seller. The right of objection does not exist, however, if the employment relationship is transferred to the entire assets of the seller due to a corporate legal succession of the purchaser because the seller no longer exists with the asset succession. The lack of information or even insufficient information does not set the monthly deadline running, so that in this case, affected employees can effectively object to the transfer of their employment relationship for a long time afterwards (even if they were actually continued to be employed by the company purchaser). Because the case law of the Federal Labor Court places very high demands on information, there are considerable risks here for an employer selling the company.

The information of the employee (§ 613a Abs. 5 BGB)

"Information in accordance with Section 613a (5) of the German Civil Code (BGB) requires understandable, workplace-related and accurate information. Among other things, it must contain information about the identity of the purchaser, the object and the legal reason for the transfer of business and a correct description of the legal consequences of the transfer of business for the employee ”.

In practice, notifications from employers according to Section 613a (5) BGB are often improper and therefore ineffective. The requirements of the law or the BAG can hardly be met. It is therefore usually decisive whether the employee wants to take the risk of an objection or not.

The employee's right of objection (Section 613a Paragraph 6 BGB)

Effectiveness of an objection

Pursuant to Section 613a (6) of the German Civil Code (BGB), an employee may object to a (partial) transfer of operations by law, unless the exercise of the right to object is forfeited in an exceptional case or otherwise in an improper manner ( Section 242 BGB) or the employee effectively waives it Has. A right of objection can also exist if the employment relationship has already been terminated.

An objection must be made in writing . This means the statutory written form according to Section 126 (1) BGB. This can be replaced by the electronic form according to § 126a BGB. An objection against the transfer of his employment relationship to a company acquirer declared for the employee on the record of the court is in any case void in accordance with §§ 125 sentence 1, 613a paragraph 6 sentence 1 BGB if it has not been read out and approved. An objection can also be implied. It can also be seen in the fact that the employee is pursuing claims against the transferor that require an objection. Then the attorney's certification on a corresponding document in writing can suffice. There is no obligation to give reasons when exercising the right to object.

The objection must be made in due time , i. H. according to § 613a Paragraph 6 Clause 1 BGB “within one month after receipt of the information according to Paragraph 5”. The period does not begin if no or no proper information is given. Then the right of objection exists up to the limit of forfeiture (§ 242 BGB).

If the employee relies on timely receipt of his objection, he must present and prove it.

The objection must reach the correct addressee . These are - optionally (also cumulatively possible for security) - according to Section 613a, Paragraph 6, Sentence 2 of the German Civil Code, the previous employer or the new owner. If there have been several transfers of business, only the last contract employer, not a previous employer, is the correct addressee of an objection.

Dangers of contradiction

For the contradicting employee, an effective and timely objection harbors the risk of operational dismissal , since regardless of the question of whether the specific employment relationship has been transferred, the job is also transferred. This means that the previous employer can often quit because the job is lost. An objection to a transfer of operations must therefore be carefully considered. This is also where wrong legal advice takes place. In the case of a partial transfer of business, the assessment of the effectiveness of an operational dismissal depends primarily on questions of social selection among the remaining employees.

Operational termination after an objection

If an employee objects to a transfer of business, the prohibition of dismissal due to a transfer of business (Section 613a Paragraph 4 BGB) does not preclude operational dismissal by the seller.

If the KSchG applies, an operational dismissal requires social justification, i. H. here the lack of further employment opportunities and - so reprimanded and necessary - a proper social selection. According to the current case law of the BAG, there is no longer any restricted social selection depending on the reasons for the objection: in the social selection, the reason for the objection does not matter, i.e. not whether the employee has his old job, which is now with the seller " unnecessarily ”,“ incomprehensible ”etc. has given up.

The BAG has now decided that in the event of operational termination by the seller after an objection by the employee, the works council that has "migrated" due to the transfer of operations has no jurisdiction, in particular no remaining mandate (§ 21b BetrVG) or transitional mandate (§ 21a BetrVG) for a Has resale notice. The vendor does not have to hear his old, transferred works council about a dismissal of the contradicting employee according to § 102 BetrVG.

literature

  • Erika Fischer, Silvia Mittländer, Regina Steiner: Transfer of business according to § 613a BGB. A practical guide for works council members. Düsseldorf 2009, ISBN 978-3-931975-59-3 .

Individual evidence

  1. ↑ Junker, Grundzüge des Arbeitsrechts, 7th edition, Rn 133.
  2. ↑ Thomas Kühn: The transfer of companies in temporary work , NJW 20/2011, 1409 with reference to the judgment of the ECJ of October 21, 2010 -Albron-, NJW 2011, 439.
  3. ↑ As a result, against taking “normal” temporary workers into account: Heinz Josef Willemsen: Erosion of the employer term after the Albron decision of the ECJ? Transfer of business in the event of a split employer function , NJW 22/2011, 1546.
  4. ↑ a b Steiner, et al., P. 30.
  5. ↑ Steiner, et al., P. 33.
  6. ^ Judgment of the Federal Labor Court of March 19, 2009, Az .: 8 AZR 722/07, full text on BAG homepage .
  7. ↑ Steiner, et al., P. 34 f
  8. ↑ Steiner, et al., P. 38 f
  9. ↑ Federal Labor Court, judgment of March 20, 2003, Az .: 8 AZR 97/02.
  10. ↑ Fuhlrott, Michael / Ritz, Sebastian: Requirements for letters of information in the case of business transfers, Betriebs-Beratung 2012, p. 2689 ff.
  11. ^ Federal Labor Court, judgment of February 21, 2008 - 8 AZR 157/07
  12. ↑ cf. about judgment of 13 July 2006 - AZ: 8 AZR 305/05 .
  13. ↑ BAG, judgment of February 15, 2007 - 8 AZR 431/06 - NZA 2007, 793 (797).
  14. ↑ BAG, judgment of March 20, 2008 - 8 AZR 1016/06 - Rn. 38 = NZA 2008, 1354.
  15. ↑ LAG Berlin-Brandenburg, judgment of October 22, 2010 - 6 Sa 1580/10 - Ls.
  16. ↑ BAG, judgment of July 13, 2006 - 8 AZR 382/05 - Rn. 23 (implied contradiction); ibid. - Rn. 28 (signed certification notice); following LAG Berlin-Brandenburg, judgment of October 22, 2010 - 6 Sa 1580/10.
  17. ^ BAG, judgment of March 19, 1998, NZA 1998, 750 (751).
  18. ↑ BAG, judgment of August 21, 2014 - 8 AZR 619/13 - NZA 2014, 1405; BAG, judgment of April 24, 2014 - 8 AZR 869/13 - NZA 2014, 1074 = NJW 2014, 3182.
  19. ↑ See BAG, judgment of May 31, 2007 - 2 AZR 276/06 - AP No. 94 on § 1 KSchG 1969 social selection.
  20. ↑ BAG, judgment of May 8, 2014 - 2 AZR 1005/12 - JA 2015, 70 (blacks).