Germany / Federal Labour Court / AZR 149/19

The plaintiff worked as a flight attendant for a German airline. In 2017, insolvency proceedings had been opened in respect of the airline’s assets. The respondent was appointed as the airline’s liquidator and terminated as such in January 2018 all contracts of the company with those employees who had been working in cabin crew functions, including the plaintiff. The plaintiff lodged a claim for compensation as provided for by the collective labour agreement for cabin crew members. The clause of the collective labour agreement in question provides for claiming compensation in favour of dismissed employees in case that the company violates its obligation to try to conciliate interests with the employees’ representation prior to a change in operations. The plaintiff argued that the dismissal of the airline’s pilots that already happened in November 2017 had constituted such a change in operations for which reason conciliation proceedings with the cabin crew employees’ representation should have been held before her dismissal and not only, as it was the case, in November 2017. The local labour court as well as the next instance dismissed the plaintiff’s claim.

The Federal Labour Court examined the content of the relevant clause of the collective labour agreement, in particular the meaning of the term “change in operations”, by interpreting its spirit and purpose and in due consideration of higher-ranking law, namely the Industrial Relations Act (Betriebsverfassungsgesetz) and the Collective Bargaining Act (Tarifvertragsgesetz). In this context the Court also considered the relevance of EU law, namely of Directive 2002/14/EC and Article 27 of the Charter.

The Federal Labour Court rejected the plaintiff’s appeal, and held that the plaintiff cannot claim for compensation on the basis of the relevant clause of the collective labour agreement for cabin crew members. By interpreting this clause, the Federal Labour Court asserted that the company did not have the obligation to try to conciliate interests with the cabin crew employees’ representation prior to the dismissals of the pilots since the clause does not stipulate such an obligation for the planning of a complete closure of the airline operations. The Court’s reading of the clause in question resulted from a restrictive interpretation of the term of “change in operation”, reducing the meaning of the clause to its legally permitted core. Furthermore, the Court held that Union law does not conflict with such a restrictive interpretation since a possible incompatibility. Although the Court denied the necessity to decide on the compatibility of its restrictive interpretation of the clause with EU law, it is reasoned that the requirements laid down in Article 4 (2) c read in conjunction with (4) e and Article 5 of the Directive 2002/14/EC or Article 27 of the Charta would not allow for another interpretation. Referring to jurisprudence of the Federal Constitutioal Court (1 BvR 2230/15) and the CJEU (Association de mediation sociale), the Court argued that the general obligation of interpretation of national law in line with Union law could not serve as a basis for an interpretation contra legem of the national law. The obligation to implement EU law by interpretation is limited by what is methodologically allowed by domestic legal tradition. In the present case such a methodological limit would be exceeded if the clause of the collective labour agreement would be given a normative weight that goes beyond the provisions of the Collective Bargaining Act.