Introduction
On 30 October 2025, the European Court of Justice (ECJ) ruled on key issues concerning the legal consequences of a missing or incorrect mass dismissal notification in the Tomann case (C-134/24) and the Sewel case (C-402/24). Hopes that the ECJ would mitigate the strict legal consequences of errors in mass dismissal procedures in response to the questions referred by the Second and Sixth Senates of the Federal Labor Court (Bundesarbeitsgericht, BAG) have been largely disappointed.
Legal background
§ 17 (1) and (3) of the German Employment Protection Act (Kündigungsschutzgesetz, KSchG) require employers to submit a mass dismissal notification to the competent government labor agency before carrying out mass dismissals if statutory thresholds are reached. If there is a works council in the company affected by mass dismissals, § 17 (2) KSchG also requires the employer to provide the works council with certain information specified by law before submitting the mass dismissal notification and, in particular, to discuss with it the possibility of avoiding or limiting redundancies and mitigating their consequences (so-called consultation procedure).
Until now, the BAG has assumed that many violations of the legal requirements of § 17 KSchG, both in the context of the consultation procedure and when notifying a mass dismissal, lead to the invalidity of the dismissals covered.
Background to the ECJ rulings
The ECJ rulings were preceded by a remarkable exchange of blows between the Sixth and Second Senates of the BAG. In its ruling of 14 December 2023 – 6 AZR 157/22 (B) – the Sixth Senate of the BAG initially announced its intention to change the previous case law. The absence of, or errors in, the notification of mass dismissals should no longer lead to the invalidity of dismissals, whereas errors in the consultation procedure should continue to do so. As this represented a departure from the case law of the Second Senate, the Sixth Senate asked the Second Senate to change this case law in a divergence request on a point of law pursuant to § 45 (3) Labor Court Act (Arbeitsgerichtsgesetz).
The Second Senate then suspended the divergence procedure by order of 1 February 2024 – 2 AS 22/23 (A) – and requested the ECJ in the Tomann case to answer several questions on the interpretation of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to mass dismissals (Mass Dismissals Directive), which forms the basis of German law on mass dismissals. The Tomann case was based on an action for unfair dismissal in which an insolvency administrator had completely failed to give the required mass dismissal notification before giving notice of dismissal.
Three months later, the Sixth Senate of the BAG took the Sewel case as an opportunity to also refer the matter to the ECJ (ruling of 23 May 2024 – 6 AZR 152/22 (A)). Unlike in the Tomann case, the starting point for the proceedings was a case in which a notice of dismissal had been given, but the plaintiff had complained about factual errors in the mass dismissals.
The ECJ rulings
In the Tomann case, the ECJ essentially followed the opinion of Advocate General Norkus. In the opinion of the ECJ, a mass dismissal notification is a prerequisite for the effectiveness of redundancies subject to notification. An employer who has not submitted the notification cannot “make up” for the lack of a redundancy notification by submitting a subsequent notification in such a way that the dismissal would take effect 30 days after the subsequent notification. In other words, they cannot “remedy” the dismissal, with the result that the dismissal becomes effective after the expiry of the 30-day “dismissal ban” provided for in § 18(1) KSchG and the Mass Dismissal Directive, i.e., the period for the earliest possible effective date of dismissals.
Among other things, the ECJ left unanswered in the Tomann case the further question of whether a mass dismissal notification can only terminate employment if the substantive requirements of the Directive for a mass dismissal notification are met. Since no mass dismissal notification had been submitted at all, the ECJ was able to dismiss the question of the content requirements in this case as irrelevant to the decision and thus leave it unanswered.
In the Sewel case, the ECJ then dealt, among other things, with the question of what substantive requirements a mass dismissal notification must meet.
The ECJ emphasized that the notification to the competent authority should enable it to react to the planned redundancies at an early stage. The Court concluded that a notification cannot fulfill its purpose if it does not meet the substantive requirements set out in the Mass Dismissal Directive. Such a notification cannot satisfy the Directive even if the authority does not object to the incorrect or incomplete notification.
In addition, the ECJ commented on the question of whether, under EU law, it is sufficient as a sanction for an incorrect or incomplete notification of redundancies if the 30-day moratorium on redundancies provided for in Art. 4(1) subparagraph 1 of the Directive does not begin to run. This view was raised as a possible sanction, in particular in the order for reference from the Second Senate. According to the Court of Justice, the Mass Dismissal Directive, with the suspension of dismissals as a legal consequence, “merely” stipulates that mass dismissals may take effect at the earliest 30 days after proper notification of dismissal. However, Art. 6 of the Directive also requires Member States to take effective, efficient and proportionate measures to ensure compliance with the provisions of the Directive. It is therefore not sufficient for the 30-day period provided for in Art. 4(1), first subparagraph, not to run in the event of an incorrect or incomplete mass dismissal notification. Member States must provide for further sanctions.
Consequences of the rulings
The initial reactions to the ECJ’s rulings were somewhat contentious, particularly with regard to their implications for the legal consequences of errors in the mass dismissal procedure. It now remains to be seen what BAG will make of the ECJ’s statements in the two cases.
Insofar as the ECJ ruled in the Tomann case that a mass dismissal notification is required for redundancies subject to notification to take effect, and that it is not possible to make up for this, the mass dismissal notification is likely to remain a prerequisite for the effectiveness of redundancies subject to notification in accordance with the previous case law of the BAG.
In the Sewel case, the ECJ also clarified that, under EU law, a notice of dismissal must comply with the content requirements set out in the Directive. The ECJ referred to the Member States for sanctions in the event of incorrect mass dismissal notifications. At the same time, however, the ECJ clarified that it is not sufficient if an incorrect mass dismissal notification would only result in the 30-day dismissal ban not starting to run. The ECJ left open the question of whether dismissals subject to notification are invalid in this case in accordance with the previous case law of the BAG. This gives the BAG the option of finding a milder legal consequence than the invalidity of the dismissal, provided that the legal consequence is more severe than the non-commencement of the 30-day dismissal protection period (assuming that the Second and Sixth Senates of the BAG agree on this issue; otherwise, the Grand Senate of the BAG will decide). However, creativity is limited by the principles of permissible judicial development of the law: After all, the development of the law is primarily the task of the legislature.
Under these circumstances, the Sixth Senate of the BAG consideration of departing from the invalidity of dismissals in the event of notification violations is likely to remain questionable. In practice, therefore, the utmost care must continue to be exercised when submitting mass dismissal notifications and conducting the consultation procedure.
