LAG Rheinland-Pfalz - 6 TaBVGa 2/22
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| LAG Rheinland-Pfalz - 6 TaBVGa 2/22 | |
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| Court: | LAG Rheinland-Pfalz (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 9(1) GDPR Article 9(2)(f) GDPR § 19 WO (in DE) |
| Decided: | 16.05.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 6 TaBVGa 2/22 |
| European Case Law Identifier: | ECLI:DE:LAGRLP:2023:0516.6TABVGA2.22.00 |
| Appeal from: | ArbG Trier (Germany) 1 BVGa 4/22 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Landesrecht Rheinland-Pfalz (in German) |
| Initial Contributor: | n/a |
The District Labour Court Rhineland-Palatinate ruled against granting unrestricted access to election records to the data subjects.
English Summary
Facts
The case revolves around a dispute between employees (the data subjects) and the Works Council (the controller) regarding access to the records of a works council election. The data subjects were employees at this plant and were eligible to vote and be elected in the election. However, their candidate list was deemed invalid due to the ineligibility of one candidate. Despite their candidate list not being included, the works council with thirteen members was elected and the results were proclaimed.
The data subjects contested the election at the Trier Labour Court. They later requested full access to the election documents to prepare their case but received no response, leading them to file a motion for an injunction to access the records, either fully or partially, omitting any data revealing individual voting behavior. The Trier Labour Court granted partial access, excluding materials that might reveal individual voting behaviors. The Works Council appealed this decision, arguing the data subjects' request was too broad and violated data protection laws. The data subjects also filed a cross-appeal seeking full access.
Holding
The Trier Labour Court initially decided that the data subjects had the right to access the election records, provided it did not violate the election secrecy guaranteed by § 14(1) of the Works Council Constitution Act and GDPR, thus rejecting the unrestricted access request. The Works Council was advised to grant access to the documents necessary for verifying the election's regularity but not those revealing individual voting behavior.
Upon appeal, the District Labour Court Rhineland-Palatinate affirmed that while there was a legitimate interest in inspecting the documents, this right was limited by the need to protect election secrecy. Any request that broadly sought access to sensitive data revealing individual voting preferences without justification is unfounded.
The District Labour Court Rhineland-Palatinate emphasized that general requests covering all possible scenarios without sufficient justification are to be dismissed as a whole when any part of the request is found invalid. Since the data subjects did not adequately justify their need for unrestricted access, their motion was denied. Moreover, their failure to initiate enforcement within the required one-month period rendered their injunction invalid.
The final decision required the data subjects' request for unrestricted access to be denied and upheld the necessity of protecting sensitive data, emphasizing proper procedural adherence.
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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.
Guiding Principles 1. The obligation to retain records according to § 19 WO (juris: BetrVGDV1WO) is intended to allow the review of the election documents even after the works council election is concluded, to verify the election's regularity. This authority is not only granted to the works council, which is responsible for keeping the election records and whose members can easily access the documents at any time. The retention obligation also implies a legitimate interest for those who are concerned with the validity of the works council election to access the records. This includes at least the individuals and entities entitled to challenge the election under § 19 para. 2 sentence 1 BetrVG. (Rn.40) 2. The right to inspect the election records of the works council election is not unrestricted concerning the election secrecy guaranteed for works council elections under § 14 para. 1 BetrVG. This limitation aims to protect voters from any social pressure. Inspection of these documents is only permitted if it is necessary to verify the regularity of the election. (Rn.41) 3. According to consistent case law of the Federal Labour Court, which the appeal chamber concurs with, a global application covering a variety of situations must be dismissed in its entirety if there are at least some situations where the application is found to be unfounded. This does not apply if the application relates to clearly separable and distinct facts and the justified part can already be identified as a partial goal of the procedure from the application itself. (Rn.43) Procedural History Previous Labour Court Trier, 1 September 2022, 1 BVGa 4/22, Decision Ruling Upon the appeal of the participant no. 4), the decision of the Labour Court Trier - dated 1 September 2022 - Az.: 1 BVGa 4/22 - is amended, rejecting the cross-appeal of the participants no. 1) to 3), and rephrased as follows: The applications are dismissed. Reasons A 1. The parties are disputing whether the works council involved as no. 4) is obliged to grant the applicant employees involved as no. 1) to 3) access to the records of a works council election. 2. The employer involved as no. 5) (hereinafter: employer) is a company producing shock absorbers and suspension systems, which also operates a plant in Z.-City. The applicants no. 1) to 3) are employees of the employer who were eligible to vote and be elected in the works council election in question at the Z.-City plant. 3. In preparation for the works council election scheduled for 15 March 2022 at the employer's Z.-City plant, the chairperson of the election committee, Y., informed the participant no. 3) as the representative of the list via email on 27 January 2022 (Bl. 29 d. A.) that his candidate list, which included participants no. 1) and 2), would be reviewed for accuracy due to a candidate. An external lawyer engaged by the election committee subsequently produced an expert opinion, which concluded that the candidate list was irreparably invalid under § 8 para. 1 WO because it included the ineligible candidate X. W., who was associated with the V.-City location. In a letter dated 4 February 2022, the chairperson of the election committee informed participant no. 3) of the legal review result and explained that the candidate list could not be considered in the works council election and that it was also not possible to submit a new list due to the expiry of the submission deadline. 4. Consequently, on 15 March 2022, the works council (hereinafter: works council) involved as no. 4) was elected without the participation of the applicants' candidate list, resulting in thirteen works council members being elected. The election result was announced on 21 March 2022. The election records were handed over to the works council for safekeeping. 5. The applicants challenged the works council election at the Labour Court Trier with a submission dated 1 April 2022. 6. In a letter dated 18 July 2022 (Bl. 30 f. d. A.), the applicants' legal representative requested complete access to the election documents from the works council's legal representative in the election challenge procedure, proposing several possible dates and requesting alternative dates in case of unavailability. After receiving no response, the request was repeated unsuccessfully in a letter dated 29 July 2022. 7. On 17 August 2022, the applicants submitted an application for an interim injunction to the Labour Court Trier, seeking unrestricted access to the election records of the works council election on 15 March 2022, or alternatively, access to the extent that no conclusions about the voting behavior of individual employees could be drawn. The application was accompanied by affidavits from the applicants, referenced in Bl. 34 ff. d. A. 8. In the first instance, the applicants argued that they needed access to the election documents to prepare for the hearing in the election challenge procedure and to meet their burden of proof. They had to verify the regularity of the election, including who initiated the examination of the candidate's ineligibility, when, and how. It was also necessary to determine if there were other employees at the employer who had their voting eligibility or candidacy withdrawn during the election committee's term up to 15 March 2022. Since the election challenge could result in new elections, it was essential to know which employees were eligible to vote or be elected. The already identified violations suggested further irregularities that needed clarification. Since the works council had full access to the records, access should also be granted to ensure parity. Their legal representative needed to review the documents, as legal laypersons could not understand the legal significance of the information obtained from the election documents, which also involved an externally commissioned expert opinion. In the hearing before the Labour Court on 1 September 2022, the applicants stated that they also wanted to review the election documents themselves. 9. The applicants requested: 10. 1. The works council be ordered by way of an interim injunction to grant the applicants full access to the election records of the works council election on 15 March 2022, which the works council retains under § 19 Election Regulations. 11. 2. Alternatively, if the first request is denied, the works council be ordered by way of an interim injunction to grant the applicants access to the election records of the works council election on 15 March 2022, to the extent that no conclusions about the voting behavior of individual employees can be drawn. 12. The works council requested: 13. The dismissal of the applications. 14. In the first instance, the works council argued that the application was problematic because the applicants' legal representative, not the applicants themselves, sought the right of access according to the submission. Moreover, no main proceedings regarding access to the election documents had been initiated. For the requested interim relief, the main proceedings had to have a high probability of success. The applicants contradicted their urgency claim by initiating the election challenge on 1 April 2022, but the first letter reached them as the works council's incorrect representative only on 18 July 2022. The works council had not been asked extrajudicially to grant the applicants access to the election documents; only the now representing legal representative, who was not mandated, was contacted. Due to the GDPR, there was no legal basis for access to the election documents, and the Federal Labour Court's decisions predated the GDPR and could not be applied. 15. The Labour Court, by decision on 1 September 2022, ordered the works council, under the rejection of the application otherwise, to grant the applicants access to the election records of the works council election on 15 March 2022, to the extent that no conclusions about the voting behavior of individual employees could be drawn. The court mainly reasoned that the applications were admissible, but only the alternative request was justified. The main request was denied because there was no entitlement to unrestricted access. Although the obligation to retain records under § 19 WO generally provides a right of access for those entitled to challenge the election under § 19 para. 2 sentence 1 BetrVG, the right of access is not unlimited concerning the election secrecy guaranteed under § 14 para. 1 BetrVG. The applicants had not demonstrated why access to all election documents, including those affecting election secrecy, was necessary. The court pointed out that already identified violations and irregularities did not replace the requirement for specific allegations. However, a claim for access to the election records under preservation of election secrecy was justified. GDPR concerns were not an obstacle. The applicants did not have to rely on the main proceedings and the possibility that the court might order the release of the documents in the ongoing election challenge procedure. The urgency was given, considering that the claim was clearly justified. The partial anticipation of the main issue was justified due to the ongoing election challenge procedure. If no errors were found, it would benefit the election challenge procedure. The works council's interests were not affected. The fact that the main proceedings had not been initiated did not negate the urgency. Nor were the applicants required to exercise their independent right of access immediately after the election. An extrajudicial assertion was not necessary. For further details, refer to pages 4 ff. of the decision (= Bl. 86 ff. d. A.). 16. The first-instance decision was officially served on the works council's legal representative on 21 September 2022. The applicants admitted in the hearing before the appeal chamber on 16 May 2023 that there was no additional party service. 17. The works council appealed the decision of the Labour Court with a submission received by the State Labour Court on 7 October 2022 and justified the appeal within the extended appeal justification period with a submission received on 19 November 2022. The appeal justification was served on the applicants on 22 December 2022. The applicants filed a cross-appeal on 11 January 2023, received by the court on the same day, and justified it immediately. 18. The works council argued in its appeal, according to its appeal justification dated 19 November 2022 and its submissions dated 9 February 2023 (Bl. 215 ff. d. A.) and 25 April 2022 (Bl. 222 d. A.), primarily claiming that: 19. The alternative request was too vague to be admissible. Sensitive data of employees and the company, requiring confidentiality, were stored in the works council's premises or on its storage media, and it needed to be ensured that these data were not presented for unauthorized access through an imprecise title enforcement. In the main proceedings initiated only two months after the interim order, the applicants also listed the desired documents, making it possible to determine which documents were not requested through the alternative request. The restriction in the alternative request was too vague, as the documents not covered could be precisely specified and excluded. Even the voting remark was covered by the election secrecy and had to be excluded. Both the main and alternative requests were unfounded as unrestricted global requests. The works council could not discern which documents to release and in what form. It had to be clear from the title which information to release and which to protect due to election secrecy or sensitive data. The Federal Labour Court's view on document access for all those entitled to challenge was to be rejected, as such an interpretation of § 19 WO exceeded the authorizing basis of § 126 no. 7 BetrVG for issuing a regulation on the retention of election records, especially since the interpretation would lead to intrusions into election secrecy, which only conflicting law of the same rank could justify. The Federal Labour Court's case law did not sufficiently protect election secrecy. The Labour Court also did not sufficiently consider that data protection law had significantly tightened in the meantime. Since § 425 ZPO applied, there was no further overriding legitimate interest for those entitled to challenge in accessing the documents. The Labour Court also disregarded that the election file contained documents with sensitive data within the meaning of Art. 9 GDPR, such as ethnicity or union membership, whose processing was prohibited under Art. 9 para. 1 GDPR. Employers or employees could not invoke Art. 9 para. 2 f) GDPR, as the right to access files was not about ensuring Art. 103 GG but about enabling someone to present something under Art. 103 GG. Given these significant constitutional and data protection concerns, a predominant probability of success for the application was not recognized. Moreover, the necessary main proceedings were initiated only two months later. The Labour Court wrongly denied harm to the works council, as it had a duty to protect election secrecy and handle data in compliance with data protection. The Labour Court also did not consider the self-contradiction in urgency, as the applicants requested document access only three months after the election. The cross-appeal was inadmissible because it did not explain why access to election documents beyond the alternative request was needed, especially as it was suggested that parts of the documents to be accessed could be covered to protect election secrecy. 20. On 25 April 2023, the works council applied to the Labour Court Trier to set aside the interim injunction - 1 BVGa 4/22 - of 1 September 2022, as party service had not yet been carried out and enforcement was therefore inadmissible according to § 85 para. 2 ArbGG in conjunction with §§ 935, 936, 929 para. 2 ZPO, because more than a month had passed since the announcement or service to the applicants. In the hearing before the appeal chamber, the works council stated that it was also relying on the annulment of the first-instance decision on the alternative request due to the lack of enforcement of the first-instance decision in the present proceedings. 21. The works council requested: 22. The decision of the Labour Court Trier of 1 September 2022 is amended, and the alternative request is also dismissed. 23. The applicants requested: 24. 1. The appeal is dismissed. 25. 2. On the cross-appeal of the applicants, the decision of the Labour Court Trier - 1 BVGa 4/22 - of 1 September 2022 is amended. 26. The works council is ordered by way of an interim injunction to grant the applicants, as well as their legal representative, full access to the election records of the works council election of 15 March 2022, which the works council retains under § 19 Election Regulations. 27. The works council requested: 28. The cross-appeal is rejected, alternatively dismissed. 29. The applicants defended the first-instance decision on the alternative request and justified their cross-appeal in the second instance according to their response and cross-appeal justification dated 11 January 2023 (Bl. 171 ff. d. A.), primarily arguing that: 30. They needed full access to the election documents, as numerous and serious violations of a proper election procedure had already become apparent and had been presented in the election challenge proceedings without access (e.g., no supplementary postal or electronic transmission of the election announcement, no proper posting of the election announcement, lack of identity of the election announcement and the candidate proposals. Unlawfully shortened deadline for submitting candidate proposals on 26 January 2022, no properly laid out voter list due to severely limited access). It was necessary to clarify why an employee listed as eligible and electable on the voter list at the time of submitting a candidate proposal was subsequently stripped of these attributes to invalidate a formally valid proposal list. The request was specific enough, as the bailiff could usually access the election folder handed over to the works council by the election committee. The applicants were not aware of further details, such as the digitally kept election documents, first revealed in the legal dispute. The applicants and their legal representative asserted their right under § 19 WO. Access to the voter list was necessary to determine which employees were stripped of their voting eligibility and electability. The voting remark could be covered during the inspection, as well as the category "return of postal voting documents" in the postal voting documents. Urgency existed. Establishing a second candidate list alongside the list led by the election committee chairperson on behalf of IG Metall proved difficult. Non-membership in IG Metall made candidacy on the first list impossible. On 24 January 2022, a flyer was distributed in the plant, labeling a second list as harmful and a taboo breach after 65 years (Bl. 180 d. A.). On 25 January 2022, the deputy works council chairperson addressed the workforce via a video message, displaying the flyer in the background and also describing the second list as harmful. Ultimately, the list submitted formally and within the deadline by participant no. 3) was declared invalid due to the alleged ineligibility of a candidate. The election committee member U. declared himself largely biased in connection with obtaining the external expert opinion "to review the open issues of the voter lists," without the applicants being aware of the specific processes. The election committee protocols concerning Mr. T., who filed an objection to the voter list on 26 January 2022 at 14:45, were also of interest, as he claimed that the employee X. W. listed on the second list was not known to him as an employee of the Z.-City plant. The outlined facts emerged like a mosaic, as seen in the affidavits. Urgency persisted, as access to the election documents could help clarify the numerous incidents in the election challenge proceedings. 31. In the hearing before the appeal chamber on 16 May 2023, the legal representatives clarified that participant no. 3) was no longer employed by the employer. 32. For further details on the facts and the dispute in the second instance, refer to the exchanged briefs and their annexes, as well as the hearing transcript of 16 May 2023. B 33. The works council's appeal is admissible and well-founded. The applicants' cross-appeal is admissible but unfounded. 34. I. There are no concerns regarding the admissibility of the appeal and the cross-appeal. 35. 1. The works council's appeal is admissible. It is permissible under § 87 para. 1 ArbGG, and the works council filed it within the statutory period following the service of the first-instance decision on 21 September 2022, with the submission received by the court on 7 October 2022 and justified it with the submission dated 19 December 2022, received within the extended justification period (§§ 87 para. 2, 66 para. 1, 64 para. 6 ArbGG in conjunction with §§ 519, 520 ZPO, § 89 para. 1 and 2 ArbGG). 36. 2. The applicants' cross-appeal is admissible. The cross-appeal was filed within the deadline. According to § 524 para. 2 sentence 2 ZPO, a cross-appeal is only admissible until the end of the period set for a party to respond to the appeal (BAG 22 September 2021 - 7 ABR 22/20 - Rn. 16, cited after juris). The applicants were given a one-month period to respond to the appeal, starting from the service on 22 December 2022. The cross-appeal filed on 11 January 2023 was within this period. The cross-appeal was otherwise effective. According to § 524 para. 3 sentence 1 ZPO, the cross-appeal must be justified in the cross-appeal brief. The applicants' brief dated 11 January 2023 met this requirement. The cross-appeal justification also met the requirements for a justification under § 524 para. 3 sentence 2 ZPO in conjunction with § 520 para. 3 ZPO. The applicants addressed the reasons for rejecting the unrestricted main request in the first-instance decision. Whether the arguments are coherent and legally correct is not decisive. A plausible justification cannot be demanded (see BAG 19 February 2013 - 5 AZR 543/11 - Rn. 14, 15 March 2011 - 9 AZR 813/09 - Rn. 11; LAG Rheinland-Pfalz 16 February 2022 - 7 Sa 307/21 - Rn. 39, each cited after juris). 37. II. The applicants' cross-appeal is unfounded. The Labour Court rightly rejected their main request. 38. 1. The applicants' main request to order the works council by way of an interim injunction to grant the applicants and their legal representative full access to the election records of the works council election on 15 March 2022, which the works council retains under § 19 WO, is admissible, particularly sufficiently specific under § 253 para. 2 no. 2 ZPO. The request covers the inspection of all documents held by the works council, handed over by the election committee, regarding the works council election conducted on 15 March 2022. If the request is granted, it is also clear to the works council which documents to present to the employer for inspection, namely those handed over by the election committee for this election. The works council knows what these are (see BAG 27 July 2005 - 7 ABR 54/04 - Rn. 18, LAG Berlin-Brandenburg 9 November 2011 - 7 TaBVGa 1213/21 - Rn. 21; each cited after juris). This does not change even if electronic documents were used during the works council election. The works council knows which documents were handed over for retention. Finally, the appeal chamber assumes in favor of the applicants that the legal interest for the request does not lapse because the participant no. 3), who continues the proceedings, has meanwhile left the employer's company (see regarding the formal requirements of the election challenge procedure: BAG 20 October 2021 - 7 ABR 36/20 - Rn. 17; 16 September 2020 - 7 ABR 30/19 - Rn. 20; 4 December 1986 - 6 ABR 48/85 - Rn. 23 ff., cited after juris). 39. 2. However, the request is unfounded. 40. 2.1. According to the Federal Labour Court's consistent case law, which the appeal chamber concurs with, the obligation under § 19 WO to retain the election records until the end of its term generally implies a right of the employer to inspect the election records (see BAG 27 July 2005 - 7 ABR 54/04 - Rn. 20; Fitting BetrVG 30th ed. 2020 § 19 WO 2001 Rn. 2; GK-BetrVG - Jacobs 11th ed. 2018 § 19 WO Rn. 3). The obligation to retain records under § 19 WO is intended to allow reviewing the election documents even after the works council election to verify its regularity. This authority is not only granted to the works council, which keeps the election records and whose members can easily access the documents at any time. The retention obligation also implies a legitimate interest for those concerned with the validity of the works council election to access the records. This includes at least the individuals and entities entitled to challenge the election under § 19 para. 2 sentence 1 BetrVG (BAG 12 June 2013 - 7 ABR 77/11 - Rn. 23, aaO; 27 July 2005 - 7 ABR 54/04 - Rn. 21, cited after juris; LAG Berlin-Brandenburg 9 November 2021 - 7 TaBV 1213/21 - Rn. 23, aaO). 41. The right to inspect the election records of the works council election is not unrestricted concerning the election secrecy guaranteed under § 14 para. 1 BetrVG. This limitation aims to protect voters from any social pressure (see BAG 27 July 2005 - 7 ABR 54/04 - Rn. 25, cited after juris). Inspection of these documents is only permitted if it is necessary to verify the regularity of the election. This applies, for example, to the voter lists with voting remarks of the election committee, returned postal voting documents, or personal letters from individual voters to the election committee (BAG 12 June 2013 - 7 ABR 77/11 - Rn. 24, cited after juris). The voting remarks of the election committee or returned envelopes in postal voting allow conclusions about who did not participate in the election. This is protected by election secrecy because even abstaining from voting can be considered a voting decision. Therefore, inspection of these records is only permissible if necessary to verify the election's regularity, which the applicant must demonstrate (see for the employer: BAG 27 July 2005 - 7 ABR 54/04 - Rn. 25, aaO; LAG Berlin-Brandenburg 9 November 2021 - 7 TaBVGa 1213/21 - Rn. 24, aaO). 42. 2.2. Applying these principles, the applicants' claim to inspect the complete election records cannot be upheld. The appeal chamber assumes in favor of the applicants that the departure of participant no. 3) from the employer's company and the associated loss of voting eligibility does not deprive him of the right to request access (see regarding election challenge: BAG 20 October 2021 - 7 ABR 36/20 - Rn. 17; 16 September 2020 - 7 ABR 30/19 - Rn. 20, cited after juris). However, the applicants' global request remains unfounded, as they failed to demonstrate the necessity of unrestricted access. It is unnecessary to decide whether data protection concerns raised by the works council counter the right of access derived from § 19 WO or whether the exception under Art. 9 para. 2 f GDPR applies, as the right to ensure the regularity of the works council election is being asserted. It is also unnecessary to decide whether the applicants' request to allow their legal representative access could succeed. 43. a) According to the Federal Labour Court's consistent case law, a global request covering various situations must be dismissed in its entirety if there are at least some situations where the request is unfounded. This only does not apply if the request relates to clearly separable and distinct facts and the justified part can already be identified as a partial goal of the procedure from the request itself (see BAG 22 September 2021 - 7 ABR 23/20 - Rn. 27; 27 July 2021 - 9 AZR 448/20 - Rn. 20; 27 October 2010 - 7 ABR 36/09 - Rn. 35, each cited after juris). If the applicant's request does not clearly indicate that they are also pursuing a specific partial goal, the court cannot decide that the claimed right exists under restrictive conditions (BAG 22 September 2021 - 7 ABR 23/20 - Rn. 27; 27 October 2010 - 7 ABR 36/09 - Rn. 35, aaO). 44. b) Accordingly, the applicants' global request must be dismissed as unfounded. They are pursuing situations where they are not entitled to access due to possible conclusions about individual employees' voting behavior and have not demonstrated sufficient reasons for unrestricted access. The Labour Court rightly pointed out that the identified violations and irregularities do not justify unrestricted access to election records. The applicants' suggestion that the voting remark could be covered during the inspection does not justify unrestricted access. If the applicants also request specific documents, it is not evident why they should have unrestricted access to documents revealing individual voting behavior. Therefore, the global request, including unfounded situations, is dismissed as unfounded. 45. III. The works council's appeal is successful. The first-instance decision on the alternative request was amended, and the alternative request dismissed because the applicants missed the enforcement deadline under § 85 para. 2 ArbGG in conjunction with §§ 935, 936, 929 para. 2 ZPO, making enforcement inadmissible. 46. 1. According to § 85 para. 2 ArbGG in conjunction with §§ 935, 936, 929 para. 2 ZPO, enforcement of an interim injunction is inadmissible if one month has passed since the announcement or service to the requesting party. 47. 1.1. "Enforcement" under this norm means initiating compulsory enforcement of the arrest or interim injunction (BGH 2 November 1995 - IX ZR 141/94 - Rn. 9; BAG 18 September 2007 - 9 AZR 672/06 - Rn. 32, LAG Berlin-Brandenburg 13 May 2020 - 15 TaBVGa 2087/19 - Rn. 20, each cited after juris). Enforcement never occurs ex officio and always requires the creditor's initiative; therefore, the creditor must act within the enforcement period of § 929 para. 2 ZPO by using the title (BAG 18 September 2007 - 9 AZR 672/06 - Rn. 32, aaO). Service within the enforcement period does not meet the requirements of enforcement under § 929 para. 2 ZPO, as it lacks the "specific enforcement element" that the creditor acts and shows intent to use the title forcibly (BAG 18 September 2007 - 9 AZR 672/06 - Rn. 37, aaO). The enforcement requirement is fulfilled if the application for penalty measures under § 890 ZPO is made within the one-month period (see LAG Nürnberg 31 July 2001 - 6 Sa 408/01 - Rn. 31; Hessisches LAG 18 July 2000 - 5 TaBVGa 120/00 - Rn. 22, each cited after juris); this constitutes an act of enforcement (see overall BAG 18 September 2007 - 9 AZR 672/06 - Rn. 40, aaO; BGH 13 April 1989 - IX ZR 148/88 - Rn. 26, cited after juris). Also, in the decision-making process, enforcement of an interim injunction under § 929 para. 2 ZPO requires party service within the enforcement period; service ex officio is insufficient (see LAG Berlin-Brandenburg 13 May 2020 - 15 TaBVGa 2087/19 - Rn. 20, aaO; 24 February 2011 - 7 Ta 2696/10 - Rn. 7; LAG Hamm 2 January 2017 - 7 Ta 585/16 - Rn. 18, each cited after juris). 48. 1.2. If the debtor of an interim injunction relies on subsequent changes in significant circumstances, they can raise this in the annulment procedure under §§ 927 para. 1, 936 ZPO or in the opposition or appeal proceedings against the interim injunction. If none of these procedures are pending, the debtor has a choice of legal remedy to assert the changed circumstances (see LG Hamburg 18 September 2017 - 324 O 401/17 - Rn. 18, cited after juris; Musielak/Voit ZPO 20th ed. 2023 § 927 Rn. 2). However, both legal remedies cannot be pursued simultaneously (see LG Hamburg 18 September 2017 - 324 O 401/17 - Rn. 18, aaO Musielak/Voit ZPO 20th ed. 2023 § 927 Rn. 2). If the annulment procedure under § 927 ZPO is initiated, the legal protection need ceases when opposition or appeal is raised, as the review scope there also includes the initial legality and changed circumstances (see Musielak/Voit ZPO 20th ed. 2023 § 927 Rn. 2). Conversely, if changed circumstances are already asserted in another procedure to remove the interim injunction, parallel annulment proceedings under § 927 ZPO are precluded due to lis pendens (see Zöller - Vollkommer ZPO 34th ed. § 927 Rn. 2) or lack of legal protection interest (see OLG Koblenz 30 January 1989 - 6 W 20/89 GRUR 89, 373 f.; Münchner Kommentar - Drescher ZPO 6th ed. 202 0 § 927 Rn. 3). 49. 2. Based on this, the applicants missed the enforcement period under § 85 para. 2 ArbGG in conjunction with §§ 935, 936, 929 para. 2 ZPO, as they failed to initiate compulsory enforcement within one month from the first-instance decision's announcement on 1 September 2022 through party service. This was explicitly admitted by the applicants' legal representative in the hearing before the appeal chamber. The first-instance decision's service by the Labour Court was insufficient. Therefore, the first-instance decision on the alternative request was amended, and the alternative request dismissed. The applicants rightly did not pursue the alternative request in their cross-appeal. A cross-appeal seeking to reissue the interim injunction would have been inadmissible (see OLG Düsseldorf 24 May 2005 - 9 U 4/04, 9 U 4/04 - Rn. 9 f., cited after juris mwN; OLG Frankfurt 4 November 1982 - 6 U 99/82, JurBüro 1983, 784; OLG Koblenz 29 July 1980 - 6 U 591/80, LS, cited after juris; Zöller - Vollkommer ZPO 34th ed. § 929 Rn. 26). 50. III. No cost decision was necessary under § 2 para. 2 GKG. There is no legal remedy against this decision, § 92 para. 1 sentence 3 in conjunction with § 85 para. 2 ArbGG.
