LArbG Baden-Württemberg - 2 Sa 16/21
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| LAG Baden-Württemberg (Germany) - 2 Sa 16/21 | |
|---|---|
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| Court: | LAG Baden-Württemberg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 12(1) GDPR Article 15 GDPR |
| Decided: | 10.08.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 2 Sa 16/21 |
| European Case Law Identifier: | |
| Appeal from: | ArbG Stuttgart (Germany) 22 Ca 5112/20 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Landesrechtsprechung Baden-Württemberg (in German) |
| Initial Contributor: | n/a |
The Regional Labour Court of Baden-Württemberg held that, according to Article 15 GDPR, a controller may respond to an access request through a delegated agent, such as their parent company's data protection officer.
English Summary
Facts
The case concerned the validity of two ordinary notices of termination issued by the former employer of the plaintiff, and the continuation of the plaintiff's employment with the second defendant. Among various claims in the proceedings, the plaintiff argued that their former employer violated their Article 15 GDPR obligations as a data controller.
The plaintiff requested information under Article 15 GDPR from its former employer as a data subject. On 25 January 2021, they received an email response from the data protection officer of the data controller's parent company. The email included a reference to an attachment with the requested information.
The plaintiff claimed that this constituted a violation of the GDPR, since they did not receive the information from the data controller, but from the data protection officer of the parent company. Furthermore, they claimed that the reference to the attached appendix in the email was not transparent.
The plaintiff sought information from the former employer pursuant to Article 15 GDPR, the provision of copies of the personal data processed, and damages for violations of the GDPR.
Holding
Concerning the "person responsible" for the provision of information
The court held that the information was provided by the "person responsible", even though the sender of the information letter was not the controller itself, but the data protection officer of the parent company. According to Article 12 (1) GDPR, a controller must only take "appropriate measures" so that the notification obligation pursuant to Article 15 GDPR is fulfilled. This can be done by a delegated agent, which the data protection officer in the case at hand is.
Concerning the form of the provision of information
The court held that the information provided by email was sufficient. Pursuant to Article 12 (1) GDPR, the information must be provided in writing or in another form, if necessary also electronically. No formal requirement applies. Almost all correspondence in the employment relationship between the data subject and the data controller was conducted electronically by email. Therefore, the provision of information by email was appropriate.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
State Labor Court of Baden-Württemberg judgment of August 10, 2022, 2 Sa 16/21
International air traffic operation - operating concept of § 24 para. 2 KSchG
guiding principles
1. The concept of business in Section 24 (2) KSchG is based on a legal fiction and is decoupled from the concept of business in the BetrVG. It does not depend on an actual operational unit in organization and pursuit of a work-related purpose. This fiction also helps beyond the otherwise required domestic location.
2. An air transport company iSd. Section 24 (2) KSchG therefore does not require an accessory connection to a ground operation located in Germany. The management power can also be exercised from abroad. In this case, however, only the employees of the aviation company are subject to German protection against dismissal, whose employment relationships are also subject to German law.
tenor
I. Upon the plaintiff's appeal, the judgment of the Stuttgart Labor Court of May 27, 2021 (22 Ca 5112/20) is partially amended.
1. It is determined that the employment relationship between the plaintiff and the first defendant was not terminated by the termination of the first defendant on July 14, 2020.
2. Otherwise the action is dismissed.
II. Otherwise the appeal is rejected.
III. The plaintiff has to bear 70% and the defendant 1 30% of the court costs of the first instance.
The defendant has to bear 1 30% of the (reimbursable) extrajudicial costs of the first instance of the plaintiff. The plaintiff has to bear 70% of the (reimbursable) extrajudicial costs of the first instance of the first defendant. The plaintiff has to bear the (reimbursable) out-of-court costs of the first instance of the second defendant in full.
The plaintiff has to bear 69% of the court costs of the second instance and the defendant 1 31%. The defendant has to bear 1 31% of the out-of-court costs of the second instance of the plaintiff. The plaintiff has to bear 69% of the out-of-court costs of the second instance of the first defendant.
The plaintiff has to bear the extrajudicial costs of the second instance of the second defendant in full.
IV. The revision is allowed for both parties.
facts
1
In the court of appeal, the parties are still arguing about the validity of two ordinary terminations pronounced by the 1st defendant, about the continuation of the plaintiff's employment relationship with the 2nd defendant due to a transfer of business and, alternatively, about continued employment. In addition, the plaintiff requests information from the first defendant in accordance with Art. 15 (1) GDPR, copies of the processed personal data and damages for violations of the GDPR.
2
Due to the factual and disputed status in the first instance, reference is made to the detailed facts of the labor court judgment of May 27, 2021, which was not objected to by either party.
3
The judgment under appeal dismissed the action and is of the opinion that the employment relationship between the plaintiff and the first defendant had already been terminated by the first notice of termination on July 14, 2020, effective October 31, 2020. According to Section 24 (1) and (2) KSchG, the scope of application of the Protection against Dismissal Act only applies to domestic aviation companies. Such would not exist in view of the management power exercised by the 1st defendant to a large extent by Austria. Nevertheless, the regulations of the law on protection against dismissal are applicable to the plaintiff's employment relationship via a modification of the company's concept of protection against dismissal in a constitutional interpretation. However, the termination was socially justified due to a decision and implementation of the closure of the home base at S. Airport. The second defendant never took over operations at Homebase S. There would therefore be neither a partial transfer of operations nor a transfer of the entire flight operation to the 2nd Defendant. Because of the decommissioning, a social selection was unnecessary. The mass dismissal notification was duly carried out. Even if a (partial) transfer of business to the 2nd defendant had subsequently taken place, an employment relationship that had been transferred to the 2nd defendant would have been terminated on October 31, 2020 with the expiry of the notice period. A finding that there was an employment relationship with the second defendant could therefore not be made. The right to information pursuant to Art. 15 (1) GDPR was fulfilled with a letter from R. dated January 25, 2021. The request for copies of the data processed in the context of employment is inadmissible for lack of certainty. The plaintiff is not entitled to a claim for damages due to a data protection violation by the 1st defendant. By transmitting the plaintiff's employee data, defendant 1 only wanted to help defendant 2 in recruiting staff. The fault is small. Because the plaintiff actually applied in response to the invitation to apply, he would be contradicting his own conduct by asserting a claim for damages. For further details, reference is made to the reasons for the judgment under appeal.
4
The plaintiff's appeal, which was filed on August 30, 2021 and executed on October 11, 2021 (a Monday), is directed against this judgment, which was served on the plaintiff on August 10, 2021. The plaintiff deepens his submissions at first instance and is still of the opinion that at the time the first notice of termination was given on July 14, 2020 and even more so at the time the second notice was given on September 10, 2020, it was planned that the second defendant take over the entire flight operations of the 1st defendant, which they did by November 1, 2020 at the latest. At least in the case of the first dismissal, the employees of Homebase D. should have been included in the social selection process. In general, the plaintiff could also have been employed in W. or in P.
5
He also complains that the mass redundancy notification was incorrect due to the lack of information on the sex, age, profession and nationality of the persons to be dismissed.
6
The plaintiff claims that the GDPR right to information has not yet been fulfilled. R., who wrote the letter of January 25, 2021, is not responsible for data protection. The reference to the attached appendix is not transparent.
7
As an annex to the right to information, he is also entitled to the delivery of copies. A specification without prior information is not possible.
8th
In addition, reference is made to the second-instance submissions of the plaintiff in his briefs of October 11, 2021, May 10, 2022 and August 4, 2022.
9
The plaintiff requests:
10
1. The judgment of the Stuttgart Labor Court of May 27, 2021, delivered on August 9, 2021, Az.: 22 Ca 5112/20 is partially amended.
11
2. It is established that the employment relationship between the plaintiff and the first defendant was terminated neither by the termination by the first defendant on July 14, 2020, nor by the further termination on September 10, 2020.
12
3. It is established that the employment relationship between the plaintiff and defendant 1) will continue to exist with defendant 2) from November 1st, 2020 under unchanged working conditions.
13
4. In the event of the victory according to the complaint number 1, 2, the defendant to 2) is sentenced to continue to employ the plaintiff as a co-pilot (first officer) until the final conclusion of the legal dispute.
14
5. Defendant 1) is sentenced to provide the plaintiff with information about the plaintiff's personal data processed by her in the context of the employment relationship
15
- the purposes of data processing,
16
- the categories of personal data being processed,
17
- the recipients to whom the personal data have been or will be disclosed, if possible the planned duration for which the personal data will be stored or, if this is not possible, the criteria for determining this duration;
18
- if the personal data were not collected from the plaintiff himself, all available information about the origin of the data,
19
- the existence of automated decision-making, including profiling, as well as meaningful information about the logic involved and the scope and intended effects of such processing.
20
Furthermore, the defendant is sentenced to provide the plaintiff with a copy of the personal data in the employment context that are the subject of the processing in accordance with Article 15 (3) sentence 1 DS-GVO.
21
6. The defendant to 1) is convicted, the plaintiff compensation, the amount of which is at the discretion of the court, but should not be less than EUR 5,000.00, plus interest therefrom in the amount of 5 percentage points above the base interest rate to be paid since lis pendens.
22
7. Otherwise, the judgment of the first instance is upheld.
23
The defendants request
24
dismiss the plaintiff's appeal.
25
The defendants defend the judgment of the labor court, intensifying their first-instance submissions. For the defendant's other submissions in the second instance, reference is made to their briefs of December 10, 2021, July 4, 2022 and August 8, 2022.
Reasons for decision
26
The admissible appeal of the plaintiff, which was filed and justified in due form and time and which is also otherwise admissible, is only partially justified insofar as the plaintiff objects to the effectiveness of the termination of the defendant to 1 of July 14, 2020. Otherwise the appeal is unfounded. The subject of the dispute "DSGVO damages" (Appeal for 6) was separated from the proceedings by a separate resolution and is not the subject of this decision.
I
27
The employment relationship between the plaintiff and the first defendant was not terminated by the termination of July 14, 2020. To that extent, the impugned judgment had to be amended.
28
The termination is not socially justified according to § 1 paragraph 2 KSchG for operational reasons.
29
1. The judgment under appeal correctly established that German law is applicable in the relationship between the plaintiff and the first defendant.
30
In the “Key Issues Paper” pursuant to Article 3 Paragraph 1; 8 Para. 1 ROM I-VO, the applicability of German law from July 1, 2020 is agreed. This choice of law corresponds to what would have applied anyway according to Art. 8 Para. 2 ROM I-VO if the parties had not made a choice of law. It is therefore not necessary to decide whether the choice of Austrian law previously made in No. 14 (6) of the employment contract in accordance with Article 8 (1) sentence 2 ROM I-VO could have existed.
31
2. The provisions of the first section of the Dismissal Protection Act are also applicable to the plaintiff's employment relationship.
32
a) In principle and outside of shipping and air transport companies, only companies that are located in the Federal Republic of Germany are covered by the scope of application of the Employment Protection Act pursuant to Section 23 (1) KSchG. The law on protection against dismissal therefore only applies to domestic companies (BAG March 26, 2009 - 2 AZR 883/07 -; BAG January 17, 2008 - 2 AZR 902/06 -; BAG June 3, 2004 - 2 AZR 386/03 -).
33
Section 23 (1) of the KSchG does not contain its own definition of the concept of business, nor does the entire Dismissal Protection Act. Therefore, the one of § 1 BetrVG essentially applies. According to this, the company is the organizational unit of work equipment with the help of which the employer, alone or together with his employees, continues to pursue a specific work-related purpose with the help of technical and immaterial means, which does not only lie in the satisfaction of personal needs. This requires a uniform organizational use of material and human resources. The managerial power constituting a company is determined by the fact that the core of the employer's functions in personnel and social matters are essentially carried out independently by the same institutionalized management. The decisive factor is where the focus is on working conditions and organizational issues and how hiring, dismissals and transfers are made (BAG March 2, 2017 - 2 AZR 427/16 -).
34
b) Particularities apply to the flying personnel in accordance with Article 24, Paragraph 2 of the Consumer Protection Act. Since the adjudicating chamber shares the legal view of the 4th chamber of the Baden-Württemberg State Labor Court in the judgment of June 1, 2022 (4 Sa 65/21), reference is made to the relevant statements in the judgment mentioned.
35
aa) According to Section 24 (2) KSchG, an operation "within the meaning of this Act" includes all of the aircraft of an aviation operation. To distinguish it from land and ground companies, Section 24 (2) KSchG contains an independent company concept. According to § 23 Section 1 Sentence 1, § 24 Section 1 KSchG, this refers only to the provisions of the first and second sections of the Protection Against Unfair Dismissal Act (KSchG). On the other hand, according to these provisions, he claims no validity for the mass redundancy protection regulated in the third section of the KSchG. Section 23 (1) KSchG systematically defines the scope of the provisions of the first and second sections of the KSchG and contains (only insofar) a reservation designed by Section 24 KSchG for the aviation companies BAG February 13, 2020 - 6 AZR 146/19 -).
36
From a legal point of view, it is a legal fiction that develops the concept of business only for the first and second sections of the Employment Protection Act and decouples this from the concept of business in the Works Constitution Act (KR/Bader/Kreutzberg-Kowalczyk 13th ed. § 24 KSchG marginal number 19; APS/ Minor 6th edition § 24 KSchG Rn. 6,7). It follows that because of the character of a "mobile company" (HaKo-KSchR/Pfeiffer 7th ed. § 24 KSchG Rn. 5), the actual operational unit in organization and pursuit of a work-related purpose is not important (KR/Bader/Kreutzberg -Kowalczyk 13th edition § 24 KSchG marginal number 19; APS/Moll 6th edition § 24 KSchG marginal number 6.7; HaKo-KSchR/Pfeiffer 7th edition § 24 KSchG marginal number 5). However, if this fiction leads to the dispensability of an actually uniform work-related purpose and a spatial organizational unit, it also helps to overcome the otherwise required domestic location (DDZ/Deinert/Callsen 11th ed. § 24 marginal number 3). The only requirement is that German law is to be applied to the employees to be involved (LAG Berlin-Brandenburg March 26, 2015 - 26 Sa 1513/14 and others -; KR/Bader/Kreutzberg-Kowalczyk 13th edition § 24 KSchG marginal number 19; HaKo-KSchR/Pfeiffer 7th edition § 24 KSchG marginal number 5). The LAG Berlin-Brandenburg derives this, among other things, from the systematic considerations of the Federal Labor Court on the requirement of domestic operation within the scope of Section 23 (1) KSchG. In its decision of January 17, 2008 (2 AZR 902/06), the BAG derived the requirement for domestic operation from the comparison of Section 23 KSchG and Section 24 KSchG, with the note that Section 24 KSchG covered circumstances in which typically Contacts abroad are to be expected.
37
bb) The 7th chamber of the LAG Baden-Württemberg (LAG Baden-Württemberg September 17, 2021 - 7 Sa 32/21 -) wants to (different: HaKo-KSchR/Pfeiffer 7th ed. § 24 KSchG marginal number 5) on do not forego a domestic management system, but without explaining where this management system is actually to be located in the "mobile operation". In this respect, the assumption of the LAG Düsseldorf that the 7th chamber of the LAG Baden-Württemberg probably considers an accessory nature of the air operation to a domestic ground operation to be necessary (LAG Düsseldorf December 15, 2021 - 12 Sa 349/21 -).
38
cc) In aviation companies that are controlled from abroad, this leads to different consequences. While, according to the view presented under aa), employees based in Germany with a German contract fall within the scope of the Employment Protection Act, this is not the case in the application of the view of the 7th chamber of the Baden-Württemberg Regional Labor Court.
39
In a parallel case of an employee who was employed and dismissed by the 1st defendant at Homebase D. and was dismissed, the LAG Düsseldorf therefore left a decision on this legal consequence open and stated that even if the assumption of the 7th chamber of the LAG Baden-Württemberg wanted to follow, §§ 23, 24 KSchG would have to be interpreted in accordance with the constitution in the light of Art. 12 Para. 1 GG in such a way that at least the employees employed by German home bases would have to be subject to the regulations of the Dismissal Protection Act (LAG Düsseldorf December 15, 2021 - 12 Sa 349 /11 -).
40
However, the way out described by the LAG Düsseldorf is only helpful in individual cases in which there is only (still) a German home base, regardless of the question of whether the interpretation conforms to the constitution. Because even if the alternative solution of the LAG Düsseldorf is not linked to a management power exercised by German soil, with this solution there is still an accessory link to German soil facilities. However, if there are - as in the present case - several bases, the question arises whether (despite uniform air operations) the social selection should be made base-related or across bases, at least in the case of notices of termination in only one German ground facility.
41
dd) Taking all these circumstances into account, the Chamber follows the view presented under aa).
42
As the Federal Labor Court correctly explained, the purpose of Section 24 (2) KSchG is to be able to cover life circumstances that typically have an international connection with the Employment Protection Act (Federal Labor Court of January 17, 2008 - 2 AZR 902/06). The purpose of the company concept - i.e. also the fictitious company concept - is not to disrupt the coherence and correspondence of the Employment Protection Act, especially in the case of social selection. If an aviation company is organized in such a way that it controls its entire work-related purpose and its entire staff uniformly (from abroad), § 24 KSchG can only be understood in such a way that this then also applies to air operations iSd. § 24 Para. 2 KSchG, whereby the applicability of the law on protection against dismissal must remain limited to those employees of the aviation company who are also subject to the German contract statute or the German application of law due to the territorial principle. The construction of an artificial (fictitious) ground operation, to which the air operation is accessory, is not required.
43
This can be brought into line with the case law of the BAG on § 23 KSchG. The BAG (BAG March 26, 2009 - 2 AZR 883/07 -) has considered the existence of a joint operation between a control center abroad and an operation of a subsidiary located in Germany within the scope of § 23 KSchG to be possible. Even in such a joint German-foreign company, only those employees who are also subject to German labor law would be subject to German employment protection law. In the same way, it must also be possible to subject an international flight operation to German law on protection against unfair dismissal only with regard to its employees who are subject to German law.
44
ee) The plaintiff was undisputedly employed in the aviation operations of the first defendant. Since it is subject to German labor law, it is also subject to the first section of the Dismissal Protection Act in accordance with Section 24 (1) KSchG. The flying personnel assigned to location S. also clearly exceeded the threshold of Section 23 (1) KSchG.
45
3. In the present case, it can (still) be left open whether the closure of the S. site resulted in a loss of employment opportunities for the plaintiff.
46
4. The dismissal is not socially justified simply because the social selection was not carried out properly in accordance with Section 1 (3) KSchG. The circle of comparable employees was drawn too narrowly by the defendant. She should have included the employees still employed in Base D. in the social selection.
47
The social selection is to be carried out in relation to the company (BAG December 19, 2013
- 6 AZR 790/12 -). Defendant 1 had only one flight operation.
48
The defendant to 1 even refers to the fact that they only one of Sch. had controlled flight operations at W. (Austria). She herself correctly points out that the bases did not exercise any managerial power. However, if there is only one flight operation, all comparable employees belonging to this operation must be included in the social selection. Due to the international flight operations, however, the social selection is limited to employees subject to German law. Reference is made to the above statements on the concept of operation.
49
It is undisputed that the D. pilots were not included in the social selection process. The defendant has also not shown that the flying personnel employed at location D. were in need of social protection within the meaning of Section 1 (3) sentence 1 KSchG than the plaintiff.
II.
50
However, the employment relationship between the plaintiff and the first defendant was terminated by the termination of September 10, 2020 on December 31, 2020. This follow-up termination is socially justified for operational reasons in accordance with Section 1 (2) KSchG.
51
1. The termination of September 10, 2020 is not invalid for lack of certainty.
52
a) A notice of termination "at the next permissible date" is also sufficiently specific if the recipient of the notice is aware of the length of the notice period or can determine it for him. It is typically to be understood that the person giving notice wants to terminate the employment relationship at the point in time that results from the application of the relevant statutory, collective bargaining and/or contractual regulations as the legally earliest possible termination date. The termination date desired by the declarant can thus be clearly determined objectively. In any case, this is sufficient if the legally applicable deadline can be easily determined for the addressee of the termination and does not require comprehensive factual investigations or the answering of difficult legal questions. On the other hand, termination is not sufficiently specific if the declaration specifies several dates for the termination of the employment relationship and it is not clear to the recipient of the declaration which date should apply (BAG April 10, 2014 - 2 AZR 647/13 -).
53
b) The dismissal at issue in this case contains in its introductory sentence only the abstract announcement that the first defendant wanted to terminate the employment relationship properly and in a timely manner. The abstract earliest termination date was October 31, 2020. This was evidently based on the fact that Base D. was only to be closed at this point in time and that the aircraft was to be flown until then. The actual subsumption, which is "timely" for the plaintiff using his employment contract, only took place in the second sentence. It states the termination date of December 31, 2020, which applies specifically to the plaintiff and is determined from the employment contract. Contrary to the legal opinion of the plaintiff and the Düsseldorf Regional Labor Court (March 17, 2022 - 13 Sa 363/21 -), there are no two conflicting termination dates.
54
2. There are urgent operational requirements iSd. § 1 para. 2 KSchG, which are suitable to condition the plaintiff's termination.
55
a) Urgent operational requirements, iSv. § 1 para. 2 KSchG are suitable for causing a termination if the implementation of an entrepreneurial (organizational) decision leads to a presumably permanent loss of the need for employment of the employee concerned at the latest by the end of the notice period. A sufficiently justified forecast of the loss of employment is sufficient as a reason for termination. This prognosis must be objectively justified at the time the notice of termination is received. The business decisions of the employer are not to be checked by the courts for their factual justification or expediency, but only for whether they are obviously irrelevant, unreasonable or arbitrary. On the other hand, it must be checked without reservation whether the decision in question was actually implemented and whether the need for employment for individual employees has really ceased to exist as a result. The shutdown of the entire operation or part of an operation is one of the urgent operational requirements iSv. § 1 paragraph 2 sentence 1 KSchG. A (partial) closure of a business is understood to mean the dissolution of the business and production community between employer and employee. It consists of the entrepreneur ending the previous economic activity with the serious intention of not continuing to pursue the previous (partial) purpose of the business permanently or for an indefinite period of time that is economically significant. However, the employer is not obliged to give notice of termination due to (partial) closure of the business only after the closure has been carried out. He can also give notice of termination because of the intended (partial) closure of the business. If notice of termination is given not because the shutdown has already taken place, but because of the intention to shut it down, it is necessary for the employer to have made the serious and final decision at the time the notice of termination is received to shut down the business or part of the business permanently and not just temporarily. In addition, the future development of the operational situation at the time of termination must have already taken on tangible forms. Such tangible forms exist if, at the time the notice of termination is given, it can be assumed on the basis of a fact-based, reasonable, business management view that the operational reason necessitating the dismissal will occur with some certainty at the time of the termination date. The seriousness of the intention to shut down is not inconsistent if the employer has decided to use the dismissed employees to process existing orders within the respective notice period instead of stopping the work in question immediately. In this way, the employer merely fulfills his employment obligation, which also exists in the terminated employment relationship, with regard to the employees actually employed. In the case of an entrepreneurial shutdown concept with the immediate and simultaneous dismissal of all employees, the requirement for a social selection pursuant to Section 1 (3) KSchG (BAG February 27, 2020 - 8 AZR 215/19 -) also does not apply.
56
b) In the present case, Defendant 1 intended at least to completely cease flight operations in Germany from Bases S. and D. at the end of the summer flight schedule. At the time the notice of termination was given, this had already taken on tangible forms.
57
aa) The following can be stated for the S. Base:
58
(1) In an email dated July 10, 2020, defendant 1 informed the entire crew deployed by S. that they had made the decision to close Base S. at the end of the summer season on October 31, 2020. The plaintiff denied the entrepreneurial decision communicated in this e-mail with ignorance. In this context, he refers to the e-mail from the 1st Defendant dated July 3, 2020. However, he overlooks the fact that the e-mail of July 3, 2020 is not likely to shake the submissions of the 1st Defendant. Rather, the content of the e-mail of July 3, 2020 confirms the assertion made by the 1st defendant. It was already stated in this e-mail to the S. Crew that the 1st defendant would only refrain from closing the site on October 31, 2020 wanted if the agreements with Ver.di and the S. Crew came about on the basis of the key issues paper offered, which, as is well known, was not achieved by the deadline set by the 1st Defendant and later extended to July 9, 2020 (completely).
59
(2) Defendant 1 also implemented the plans. She terminated the employment relationships with all S. employees or initiated procedures for replacing the consent to terminations and also initiated the mass dismissal notification procedure.
60
The seriousness of this decision is also confirmed by actual events. It is undisputed that Base S. has not been flown since November 1, 2020 at the latest.
61
bb) In relation to Base D., which is associated with (German) flight operations, nothing else results.
62
(1) The e-mail to the D. crew of July 10, 2020 still expressed the hope of being able to continue working from D. In contrast to the S. location, a closure for the D. Base was not yet being considered at this point in time, or at least it had not yet been decided.
63
According to the e-mail of July 28, 2020 to the D. crew, however, defendant 1 changed its mind and now announced its intention to give up its business operations in D., albeit together with the notification that the defendant to 2 wanted to start flight operations before the end of the summer, and combined with the request to the employees of the D. crew, who agreed to the key issues paper, to apply to the 2nd defendant.
64
Irrespective of how one would like to legally assess this original intention of the second defendant to (continue to) want to maintain flight operations from D. with regard to the continued existence of the employment relationships, the second defendant, and with it the first defendant, withdrawn from this plan. On September 9, 2020 at the latest, the entrepreneurial decision was made to shut down the D. location and thus all flight operations originating from Germany. After an agreement could not be reached with D. Airport on the costs of ground handling, the parent company R. informed D. Airport in a letter dated September 9, 2020 that Base D. would be abandoned and all flights from September 20. October 2020 will be cancelled. This was then also the subject of press releases by R. and Defendant 1 dated September 10, 2020.
65
(2) This intention to decommission had already taken tangible form at the time the notice of termination was given.
66
Defendant 1 dismissed all D. employees and, alternatively, all S. employees again, or initiated approval replacement procedures for dismissals. Notices of mass redundancies were also filed.
67
With the press releases of September 10, 2020, this intention was also announced to the outside world.
68
Accordingly, the second defendant also did not commence any flight operations in Germany. Despite original requests for applications by email dated July 28, 2020, no employees were hired as part of the application process for Germany, or hired employees were terminated before the agreed start of work.
69
The further course has confirmed the seriousness of the decision.
70
Defendant 1's last flights from S., D., W. and P. took place in September and October 2020. Defendant 2 did not actually start any flight operations from Germany.
71
According to the confirmation from Austrocontrol, the 1st defendant returned its Air Operator's Certificate (AOC) on December 16, 2020.
72
Defendants 1 and 2 also no longer hold slots at German airports. The slots mainly went to competitor E.
73
3. The closure of German flight operations does not stand in the way of any sale of operations (claimed by the plaintiff) to the second defendant.
74
a) The sale of the entire business or part of a business and the closure of the entire business or part of a business are systematically mutually exclusive. It depends on the actual existence of the reason for dismissal and not on the reason given by the employer. A dismissal justified by the employer with an intention to shut down is only socially justified if the planned measure is objectively presented as a shutdown and not as a (partial) sale of a business because, for example, the operating resources, etc. essential for the continuation of the business are left to a third party who However, the seller incorrectly evaluates this process as a shutdown (BAG February 27, 2020 - 8 AZR 215/19 -).
75
When assessing whether a transfer of business or a continuation by a third party was intended, Section 613a (4) sentence 2 BGB must also be observed. After that, the right to termination for reasons other than those of the transfer of business remains unaffected. This corresponds to Art. 4 Para. 1 Sentence 2 Directive 2001/23 EC, according to which the ban on dismissals due to a transfer of business does not conflict with any dismissals for economic, technical or organizational reasons that entail changes in the area of employment. An employer is not prevented from carrying out rationalizations in connection with a sale, even if only to improve the saleability (BAG September 20, 2006 - 6 AZR 249/05 -; BAG July 18, 1996 - 8 AZR 127/94 -).
76
b) If these standards are taken as a basis, even the possible takeover of parts of the flight operations of the 1st Defendant by the 2nd Defendant does not preclude the seriousness of the closure decisions regarding the German bases and the resulting loss of employment.
77
aa) Due to a lack of local leadership in personnel and social matters, the German bases were not part of the business and therefore not units that could be transferred (compare also: LAG Düsseldorf December 15, 2021
- 12 Sa 349/21 -). But even if the bases were to be recognized as a part of the business that could be transferred, this part of the business would not have been taken over by anyone, especially not by defendant 2. Because S. and D. are no longer flown.
78
bb) But even if one wanted to assume with the plaintiff that the second defendant had taken over a (reduced) total international flight operation of the first defendant, this would not have opposed the entrepreneurial decision to close the (dependent) German part of this flight operation. In any case, this German part was not supposed to be the subject of the (alleged) takeover. For this part, there was an entrepreneurial decision that was independent of the (intended) transfer of business and which could have justified a termination on its own.
79
Because if the first defendant had only closed the German locations and continued its reduced overall operations itself, the termination due to the loss of employment would undoubtedly have been justified. Defendant 1 cannot then be placed in a worse position in terms of protection against dismissal for the same closure decision simply because it is now selling the (reduced) remainder of the entire operation. At the time the notice of termination was given, there was no indication that the second defendant wanted to acquire a total flight operation including German flight operations.
80
c) For this reason, the termination is also not invalid according to Section 613, Paragraph 4, Clause 1 of the German Civil Code.
81
The termination did not take place because the defendant to 2 possibly a
(Remaining) overall operation with stations in other European countries or possibly has acquired, but because it should no longer be flown from Germany. The notice of termination was then not “because of the transfer of a business”. The main reason for the termination was the permanent closure of the German locations.
82
4. The termination is proportionate. In the case of the first defendant, it is undisputed that there are no other employment opportunities.
83
5. A social selection according to § 1 paragraph 3 KSchG was not necessary. All employees of the flight operations of the 1st defendant who are subject to German law and could therefore have been subject to a social selection pursuant to Section 1 (3) KSchG were fired.
84
6. The termination is also not according to § 17 paragraph 1, 3 KSchG iVm. Section 134 of the German Civil Code is therefore ineffective because the collective dismissal notice would have been incorrectly submitted.
85
a) The collective redundancy was reported to the employment agency G. responsible for S. airport.
86
aa) The employer's notification obligations pursuant to Section 17 (1) and (3) KSchG, as well as Article 1 (1) (a) subparagraph i of Directive 98/59 EC, the implementation of which is aimed at § 17 paragraph 1 sentence 1 KSchG, to the company. The central point of reference for protection against mass redundancies is therefore the concept of a company (BAG February 27, 2020
- 8 AZR 215/19 -). However, the operational concept of the collective redundancy law is a Union law one. According to the Union legal order, it is to be interpreted autonomously and uniformly solely by this and thus detached from national terminology and legal provisions (BAG May 14, 2020 - 6 AZR 235/19 -). As a result, the company concept of the Employment Protection Act or the Works Constitution Act cannot be used (BAG February 27, 2020 - 8 AZR 215/19 -). The term "establishment" should be interpreted as meaning, depending on the circumstances, the entity to which the workers affected by the redundancy belong in order to carry out their duties. It must be a distinguishable entity with a certain permanence and stability, designed to carry out one or more specific tasks, with a workforce and the technical means and organizational structure to carry out these tasks. Since Directive 98/59/EC concerns the socio-economic impact that collective redundancies can produce in a specific local context and social environment, the entity in question does not need to have legal, economic, financial, managerial or technological autonomy in order to be considered a "company". iSd. Directive 98/59/EG to be qualified. The operation iSd. Directive 98/59/EG therefore does not have to have a management that can carry out mass redundancies independently. Rather, it is sufficient if there is a management that ensures the proper execution of the work and the control of the overall operation of the facilities of the unit as well as the solution of technical problems in terms of task coordination. A specific spatial distance is - unlike § 4 para. 1 sentence 1 no. 1 BetrVG - not required according to this understanding of the business (BAG February 27, 2020 - 8 AZR 215/19 -). In the case of air transport companies, the home bases at the airports, which do not have any managerial power but can ensure task coordination, can be regarded as the "establishments" where the socio-economic effects of the redundancies occur regularly, which is why the mass redundancies are to be reported at these locations (BAG 13 February 2020 - 6 AZR 146/19 -).
87
bb) Since the plaintiff was assigned to home base S., the mass dismissal was to be reported to the G. employment agency.
88
b) The collective redundancy notification is also made in the written form required under Section 17 (3) sentence 2 of the Consumer Protection Act. The submission by fax was sufficient (LAG Düsseldorf December 15, 2021 - 12 Sa 349/21 -; LAG Berlin-Brandenburg January 6, 2016
- 23 Sa 1347/15 -).
89
c) The plaintiff does not raise any viable objections in terms of content either.
90
aa) It can be left open whether the first defendant reported an incorrect number of employees to be dismissed before the termination on July 14, 2020. In any case, this was not the case with the relevant notification before the termination of September 10, 2020.
91
bb) It may also be left open whether the notification before the termination of September 10, 2020 was incomplete with regard to individual required information pursuant to Section 17 (3) sentence 5 KSchG. This would not be harmful (BAG May 19, 2022
- 2 AZR 467/21 -).
III.
92
The action for a declaratory judgment against the second defendant in accordance with the third application is unfounded.
93
Irrespective of which Maltese provision the plaintiff would like to invoke, based on which his employment relationship is said to have been transferred to the second defendant, which is subject to Maltese law, the employment relationship would not belong to the defendant even if the provisions of Directive 2001/23 EC were merely taken as a basis transitioned to 2. Reference is made to the above statements.
94
But even if one wanted to assume that the plaintiff's employment relationship would be transferred to the second defendant by November 1, 2020 at the latest, it would only have been transferred to the latter in the terminated state and would therefore have ended on December 31, 2020. A continuation of the employment relationship can therefore not be determined.
IV
95
The continued employment application for 4 did not come up for a decision because the conditions were not met.
V
96
The plaintiff no longer has a claim against the first defendant to information pursuant to Art. 15 (1) GDPR about the personal data processed by her in the context of employment. The defendant to 1 has fulfilled the right to information.
97
1. It is undisputed that the plaintiff has a right to information in accordance with Art. 15 (1) GDPR.
98
2. The defendant to 1 has fulfilled the claim.
99
a) Contrary to the plaintiff's opinion, the information was provided by the "person responsible" in accordance with the letter dated January 25, 2021. It is true that the sender of the letter of information was not the first defendant herself, but their data protection officer Ms. J. R., who is based at the parent company R. According to Art. 12 (1) GDPR, a person responsible only has to take “appropriate measures” so that the Notification obligation according to Art. 15 GDPR is fulfilled. Defendant 1 can also use vicarious agents to fulfill its obligation. The data protection officer is a suitable vicarious agent.
100
b) The provision of information by e-mail was sufficient.
101
According to Art. 12 Para. 1 Sentence 2 GDPR, the information must be transmitted in writing or in another form, if necessary also electronically. There is therefore no formal obligation (Paal in Paal/Pauly GDPR 3rd ed. Art. 15 para. 4).
102
In view of the fact that almost all of the correspondence in the employment relationship between the first defendant and the plaintiff also otherwise took place electronically by e-mail, the provision of information by e-mail was appropriate.
103
c) The content of the information required in accordance with Article 15 (1) (a) to (h) GDPR was included in the attachment to the e-mail.
104
The plaintiff was unable to state which information he considered insufficient.
VI.
105
The application contained in application number 5 for the delivery of copies of the processed personal data is already inadmissible. He is not sufficiently determined iSv. Section 253 Paragraph 2 No. 2 ZPO.
106
1. An application for action is sufficiently specific if it describes the claim raised by means of figures or a concrete description in such a way that the framework of the judicial decision-making authority (§ 308 ZPO) is clearly defined, content and scope of the substantive legal force of the desired decision (§ 322 ZPO ) are recognizable, the risk of the plaintiff possibly being partially defeated is not passed on to the defendant due to avoidable inaccuracies and any compulsory enforcement is not burdened with a continuation of the dispute in the enforcement proceedings. It is not sufficient to invoke legal provisions that provide for the claim, rather the consequences resulting from the standards must be taken into account by the plaintiff in the individual case when formulating their claim. According to this, for example, a merely abstract naming of the categories of e-mails, of which a copy is to be provided, does not meet the requirements of an iSv. § 253 para. 2 no. 2 ZPO sufficiently specific claim. In the event of a conviction, it would be unclear to which e-mails the conviction to provide a copy specifically refers and thus whether the claim would be fulfilled if e-mails falling into these categories were made available. This would avoidably shifting the dispute between the parties to enforcement. In order to avoid this, the plaintiff - insofar as he is unable to give a more precise description himself - is obliged to enforce his request by means of a class action lawsuit (§ 254 ZPO). This is initially to provide information about which e-mails of the categories in question the defendant is processing, in the second stage, if necessary, to provide an affidavit that the information is correct and complete, and finally to provide a copy of the the e-mails resulting in the information (BAG April 27, 2021 - 2 AZR 342/20 -).
107
2. In the present case, the plaintiff has not stated at all what he specifically wants. Apart from the meaningless term "personal data in the context of employment", the application does not contain any specific information. It could not be checked in the context of a foreclosure whether the defendant to 1 has completely fulfilled its obligation or not.
vii
108
Claim number 6 was separated from the proceedings and is not the subject of this decision.
109
VIII. Subsidiary decisions
110
1. The decision on costs is based on §§ 92 Paragraph 1, 100 ZPO in application of
Baumbach's formula.
111
2. The revision was to be allowed for the plaintiff and the defendant to 1 according to § 72 Abs. 2 Nr. 1 and 2 ArbGG. The interpretation of the concept of business in § 24 KSchG is of fundamental importance. Incidentally, the present decision also deviates from the decision of the 7th chamber of the LAG Baden-Württemberg (LAG Baden-Württemberg September 17, 2021 - 7 Sa 32/21 -) in terms of the concept of business.
