In its judgment of March 18, 2009 (5 AZR 355/08), the Fifth Senate ruled on the effectiveness of a contract under which a master craftsman merely made his master craftsman’s title available to a craft business without actually acting as a technical manager decide.
If the contract only serves to enable a company to be registered in the trade register, this contract is a fictitious transaction in accordance with. § 117 BGB is void. If the concession holder’s service is essentially limited to the provision of the master’s title without performing any significant work, the parties use a legal option to achieve a result that is disapproved of in accordance with Section 7 HwO.
The contract is then considered a circumvention transaction in accordance with. § 134 BGB is void. The operations manager must be able to exert a decisive influence on the craft business, have the authority to give technical instructions to the craft employees and actually be able to perform and carry out management tasks. If Section 7 of the HwO is circumvented with a concession agreement, no “defective employment relationship” is created. In such a case, a claim cannot result from a declaratory acknowledgment of guilt, because mandatory legal principles and legally established restrictions on contractual freedom are beyond the control of the parties.