If a business or part of a business is transferred to another owner through legal transactions, this owner takes over in accordance with. § 613 a Abs. 1 Sentence 1 BGB into the rights and obligations arising from the employment relationships existing at the time of the transfer. According to the established case law of the Eighth Senate, which follows the case law of the European Court of Justice, the acceptance of a transfer of a business requires the transfer of an economic unit while preserving its identity. When examining whether such an entity has been transferred, all the facts characterizing the transaction in question must be taken into account. Partial aspects of the overall assessment include, in particular, the type of company or business in question, the possible transfer of material operating assets such as buildings or movable goods, the value of the intangible assets at the time of the transfer, the possible takeover of the main workforce, the possible transfer of customers and the The degree of similarity between the activities carried out before and after the transfer and the duration of any interruption in these activities. The identity of the unit may also arise from other characteristics such as its personnel, its managers, its work organization, its operating methods and, if applicable, the resources at its disposal. The criteria relevant to the existence of a transition are given different weight depending on the activity carried out and the production and operating methods.
The Eighth Senate confirmed this case law in its judgment of October 27, 2005 (- 8 AZR 568/04 -). In the case of trading and service companies, the intangible resources, i.e. business relationships with third parties, the customer base and any customer lists, the know-how and the introduction of the company on the market are in the foreground when assessing whether a business transfer has occurred. In the case of a service and project implementation company whose main business is the economic management of residential and commercial properties, the acquisition of office equipment and material resources has no identity-defining effect. In order to continue the stated business purpose, it was not necessary to have specific office equipment, but rather to enter into the support contracts and access to customer data.
If the assets are taken over in several steps, the transfer of operations has taken place at the time when the essential assets required to continue operations have been transferred and the decision to transfer the operations can no longer be reversed.
With its judgment of August 18, 2005 (- 8 AZR 523/04 -) the Eighth Senate has repealed its previous case law, according to which a termination agreement in connection with a transfer of operations in accordance with. § 134 BGB can be void if it objectively circumvents the mandatory legal consequences of § 613 a paragraph. 1 sentence 1 BGB serves, confirms and continues. The parties to the employment contract can, in principle, effectively terminate the legal relationships in connection with a transfer of a business without there being any particular material reason for this by means of a termination agreement if the agreement is aimed at the employee’s final departure from the business. The Senate maintains that a termination agreement is ineffective due to illegal circumvention of the legal consequences of Section 613 a of the German Civil Code (BGB) if a new employment relationship with the business owner is agreed upon at the same time or at least promised as binding. If, when the termination agreement is concluded, neither an employment contract has been established between the employee and the business purchaser, nor has such a binding prospect or promise been made, there is no circumvention of the prohibition of termination in Section 613 a paragraph. 4 sentence 1 BGB. Even if the objective purpose is to eliminate the continuity of the employment relationship while maintaining the job, a termination agreement is only invalid if the deterioration in working conditions associated with this contract is objectively unjustified. This also applies if an employee is hired by a rescue company under worse working conditions after a termination agreement has been concluded. § 613 a of the German Civil Code (BGB) is circumvented if the transfer to an employment and qualification company is only a pretense before a planned transfer of operations through the termination agreement or is obviously intended to circumvent social selection. This was missing in the dispute, because there was a SanieIn judgment of May 24, 2005 (- 8 AZR 246/04 -), the Eighth Senate decided that the business transferor is authorized to file an application for dissolution in accordance with, despite the subsequent loss of employer status through a business transfer . § 9 KSchG if the transfer of operations takes place after the date of dissolution. In this case, the business transferor does not pursue the rights of the business purchaser, but rather the termination of the employment relationship that continued with him until the business was transferred. The transferor cannot be forced to fulfill the obligations arising from the employment relationship up to the time of the transfer of the business solely because of the transfer of the business, even though it was unreasonable for him to continue the employment relationship. He cannot be required to submit the application for dissolution before the transfer of the business because this violates the provisions expressly set out in Section 9 Para. 1 Sentence 3 KSchG violated the possibility of retroactive application.
Another advantage of this solution is its practical handling. According to the established case law of the Eighth Senate, the employer who terminated the employment relationship before a business transfer remains passively legitimized for judicial clarification of the social justification of the termination even after the business transfer. To justify the application for dissolution, the business transferor can claim that it is unreasonable for him to continue the employment relationship until the time of the business transfer.
§ 613 a Abs. 5 BGB stipulates that the previous employer or new owner informs the employees affected by a business transfer in text form before the transfer about the (planned) time of the transfer, the reason for the transfer, the legal, economic and social consequences of the transfer for the employees and must inform the company about the measures envisaged with regard to the employees. Gem. 613 a Abs. 6 BGB, the employee can transfer the employment relationship within one month of receipt of the information in accordance with paragraph. 5 object in writing. According to a judgment of the Eighth Senate of May 24, 2005 (- 8 AZR 398/04 -), the violation of the obligation to provide information according to § 613 a para. 5 BGB, even taking into account the principles of good faith and trust (§ 242 BGB), does not determine the ineffectiveness of the operational-related termination of the seller against an employee who has objected to the transfer of the business. Legal consequences of failure to provide or incomplete information in accordance with Section 613a Para. 5 BGB is that the objection period according to § 613 a Abs. 6 Sentence 1 BGB does not begin to run. If the obligation to inform § 613 a para. 5 BGB is violated, neither the requirements of § 242 BGB are met with the result that the termination is ineffective, nor is there a need for such a ban on termination. The emergence of a reason for termination for operational reasons is not the result of incomplete information, but rather the employee’s decision to exercise his right to object in accordance with. § 613 a Abs. 6 BGB to make use of it. Because the incomplete information limits the objection period in accordance with. § 613 a Abs. 6 Sentence 1 BGB prevents the employee from being sufficiently protected. He is not under pressure to act and can wait and, for example, exercise his right to information in accordance with Section 613 a Paragraph. Follow 5 BGB.
The Fifth Senate had to decide on the question of whether a union secretary of the DAG after the merger of the five individual unions DAG, HBV, IG-Medien, ÖTV and DPG into the United Services Union ver.di can demand to be treated in the same way as union secretaries who were previously were employed by the HBV union when ver.di was founded. In its judgment of August 31, 2005 (- 5 AZR 517/04 -) the Fifth Senate denied this. The principle of equal treatment does not apply. With the merger, the employment relationships of the employees employed by the former individual unions were transferred to ver.di. Since the identity of the former companies was dissolved with the merger, the working conditions regulated by general works agreements in the former individual unions apply in accordance with Section 613 a paragraph. 1 sentence 2 BGB continues in the employment contract. If the legal successor continues to grant the transferred employees the remuneration that they received from their respective previous employers, he only carries out the transfer of the business in accordance with Section 613 a Paragraph. 1 BGB legal consequences He himself does not make any distributive decision, which is a prerequisite for the application of the principle of equal treatment. This also applies if, as a result of the merger, an existing company organization is completely dissolved and the employees taken over are integrated into the new company organization without distinction. The employer only applies Section 324 UmwG in conjunction with Section 613 a paragraph. 1 sentences 1 and 2 BGB apply to the employment relationships.
In the event of a business transfer, the purchaser is not obliged to harmonize the different working conditions after a long period of time. There is no legal basis for this. Only if the employer creates new compensation structures is he bound to the principle of equal treatment.
The Fourth Senate was concerned with the question of whether the merger of the DAG, HBV, IG-Medien, ÖTV and DPG unions to form the ver.di union can establish a congruent collective agreement between employees and employers to a collective agreement, which is in accordance with. § 613 a Abs. 1 sentence 3 BGB which follows a transfer of operations in accordance with. § 613 a Abs. 1 sentence 2 of the German Civil Code (BGB) replaces collective agreements that have become part of the employment relationship. Mit Urteil vom 11. Mai 2005 (- 4 AZR 315/04 -) hat der Vierte Senat diese Frage bejaht. Following its previous case law, the Senate assumes that for the repression according to § 613 a para. 1 Sentence 2 of the German Civil Code (BGB) if the collective bargaining conditions continue to apply through another collective agreement, the congruent collective agreement of both parties to the employment relationship to the new collective agreement is required. Such congruent collective bargaining can be established through the merger with the ver.di union, because the collective agreements concluded by the merged unions have been transferred to ver.di. At this point, the members of the individual unions became members of ver.di. Section 95 of the statutes of the ver.di union does not conflict with this. This regulation only affects competition between normatively applicable collective agreements. It does not cover the case of the displacement of a person pursuant to Section 613 a paragraph. 1 Sentence 2 BGB of the collective agreement that continues to apply in accordance with. § 613 a Abs. 1 sentence 3 BGB. According to § 613 a paragraph. 1 Sentence 3 of the German Civil Code (BGB) does not require that mutual agreement to collective agreements already existed at the time of the transfer of the business. It can only be established after the transfer of the business. The law does not set a time limit for this.
In its judgment of April 20, 2005 (- 4 AZR 292/04 -) the Fourth Senate decided that a notarized hospital purchase contract in accordance with Sections 133 and 157 of the German Civil Code (BGB) can be interpreted as follows, based on the wording and taking into account the circumstances surrounding the conclusion of the contract The dynamic applicability of the public service collective remuneration agreements should be guaranteed after the transfer of operations. The employees can derive direct rights from this because it is a contract for the benefit of third parties within the meaning of of Section 328 Para. 1 BGB. It is true that a contract cannot create burdens for third parties who are not involved in the contract. However, despite the possibility of future deteriorating collective agreements, the assurance of the dynamic applicability of the collective remuneration agreements after the transfer of operations does not create any burdens for the employees not involved in the contract if this ensures the previous dynamic applicability and also grants the employees the right to vote out.