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Heading for the BAG - a look back at the excursion to Erfurt with the specialisation area 2

Heading for the BAG - a look back at the excursion to Erfurt with the specialisation area 2

© Juristische Fakultät Hannover

Professor Dr Heinrich Kiel, presiding judge at the Federal Labour Court, once again offered the extremely popular excursion to the Federal Labour Court in Erfurt at the end of the 2023/2024 winter semester lecture period.


So it's no wonder that the offer was received with enthusiasm. On 22 January 2024, nine students from specialisation area 2 (work, business, social affairs) and four alumni set off for Erfurt.

After a rather lengthy and bumpy journey by train, we were finally able to move into our rooms at our accommodation, the Augustinian monastery in Erfurt, in the afternoon. The long train journey had given us a lot of energy, so we set off shortly afterwards to explore the city. We strolled through the historic old town with its many small shops to the citadel on the Petersberg, from where we enjoyed the view over the illuminated city. In the evening, we were picked up at the monastery by Professor Kiel. After a brief introduction to the cases of the coming trial day, we set off to go to a restaurant together. On the way there, Professor Kiel led us through a number of pretty little streets that we would have missed without his local knowledge. During our meal together in the chosen restaurant, we had many interesting conversations and got to know each other better. After Professor Kiel had said goodbye, some of the group ended the evening in a bar.

After a night surrounded by historic walls, we made our way to the BAG early the next morning - after all, we were in Erfurt to follow two hearings. On the way there, Professor Kiel joined us and gave us a lot of information about the architecture of the BAG. Among other things, he told us that the building epitomises the BAG's jurisdiction as an appellate court. It must be straightforward and predictable, must not take individual cases into consideration, but at the same time should have the necessary contours.

When we arrived at the BAG, we were given an introduction to the day's proceedings by Dr Thieken, a research associate of the Ninth Senate and judge at the Labour Court, and were thus able to follow the two hearings in a well-informed manner.

The subject of the first hearing were three cases, each of which concerned a claim for special payments under a collective labour agreement. A special feature of the case was that it concerned a port as a whole. Its establishment - as an umbrella organisation, so to speak, in which the employees are employed and then loaned out to the individual port companies - represents an exception to the German Temporary Employment Act, which imposes strict requirements on the transfer of employees. As a permissible exception, the port as a whole functions to a certain extent as a social institution in order to guarantee the employees a permanent income, while at the same time meeting the changing demand for labour in the individual port companies.

The Senate, in the person of Professor Kiel, then pointed out the legal problems of the case. For example, the applicability of a collective agreement to secure the future, which, if applicable, would exclude the special payments under the above-mentioned collective agreement. In addition, the question arose as to whether the exclusion periods standardised in the collective agreement were sufficiently specific and, if this was the case, whether they had been observed. The Senate does not (currently) have to rule on any of these questions, as a settlement was ultimately reached, although this can still be revoked. Although possible, the senates of the Federal Labour Court rarely suggest a settlement because the appeal instance is no longer (primarily) concerned with the individual case, but with the formulation of legal principles for the entire practice of labour law.

The second hearing concerned a pilot who was formerly employed by Ryanair and was now being claimed by the airline for repayment of training costs. The first problem that arose was that the employment contract did not provide for an exception to the repayment obligation in cases where the employee resigned himself but the resignation was due to reasons within the employer's sphere. The clause could therefore constitute an unreasonable disadvantage in accordance with § 307 para. 1 sentence 1 BGB.

The question of whether German law is applicable at all was also discussed, as the employment contract contained a choice of law clause in favour of Irish law. However, such a choice of law clause is not possible if mandatory law, as in the present case possibly §§ 305 et seq. BGB (German Civil Code). The question would then arise as to whether §§ 305 et seq. BGB are also mandatory law in the area of labour law.

The Senate ultimately decided in favour of the "small" solution and allowed the asserted claim to fail due to the repayment clause itself. The reason given was that German law is more favourable for the employee and even if Irish law were more favourable, there would be no more far-reaching legal consequences. The result would be that there would be no claim for repayment.

A "grand solution" was also considered at the meeting, namely that the choice of law clause would not work overall in the form used, as no exceptions for mandatory circumstances were listed. This would have resulted in the applicability of German law as a whole. However, this would have raised fundamental follow-up questions, which were discussed intensively at the meeting and may have had to be referred in part to the ECJ as part of a preliminary ruling procedure. However, this would presumably have been precluded by the fact that there was no relevance to the decision and that statements in this regard would have been an obiter dictum not provided for in the Rules of Procedure. We are looking forward to the written reasons for the judgement.

After two exciting and very different hearings, in which we were able to marvel at Professor Kiel's human conduct of the proceedings in addition to the discussion of legal issues at the highest level, we had lunch together in the BAG's casino and exchanged views on the cases that had been heard.

Well refreshed, we were given a guided tour of the court building by Mr Becker, which, unlike many others, was built for this purpose. During the tour, we were able to take a look at a meeting room of the senates, the library and the portraits of the former judges and the former presidents of the BAG. In addition, Mr Becker told us a lot about the procedures in the building, the history of the BAG and the process of electing judges.

Finally, we would like to express our sincere thanks to Professor Kiel, who made the excursion possible in the first place and who is perceived both by us and throughout the court as an extremely valued and respected personality and an incredibly friendly person. The visit to the BAG and all the discussions we had will certainly remain in our memories for a long time and for some of us it was a nice conclusion to the specialisation, but for all of us it was certainly a unique experience.


Written by Maja Dettmers

Published by PSR