Auslegung von § 17 KSchG im Lichte der Rechtsprechung des EuGH - Aspekte der vor dem BAG schwebenden Verfahren

This article discusses the consequences of the ECJ ruling in the Junk case for pending proceedings before the Federal Labour Court in Germany. The Junk case originated from a reference by the Berlin Labour Court and concerned the interpretation of the EU's collective redundancy directive, more specifically the notion of dismissal. The dispute concerned the question whether the date when the dismissal was effective or the date when the dismissal was effected was decisive for calculating the deadline for information and consultation of works councils. The ECJ endorsed the view that an effective interpretation would demand the former, which would render a large amount of collective redundancies administered following the more restrictive interpretation by the German Federal Labour Court. The Journal summarises the article's argument in English as such:
"The ECJ ruling in the case Junk appearing relatively harmless from a European Community Law perspective meanwhile has lead to not less than 5 following rulings by which District Labour Courts denied the application of § 17 Employment Protection act as instructed by the ECJ and which are now appealed to at the Federal Labour Court. Also the Federal Work Agency has not yet adapted its practice to this ruling. Besides the argument, still known from the after pains of the ruling Pfeiffer, that an adjustment of German Law by means of interpretation in conformity with European Law is not appropriate, bona fide arguments are raised. This record pleads for an unexcited application of basic European legal principles as to priority of Community Law, interpretation in conformity with European Law and bona fide."
The author late represented one of the parties in one of the Federal Labour Court cases who took their case to the German Federal Constitutional Court, together with a colleague. The case was dealt with in a very protracted way, but was won ultimately.