Not only the 6th Senate of the Federal Labour Court see also the blog post of 4 November 2025), but also its 2nd Senate has referred questions to the ECJ regarding the legal consequences of omitted or incorrect mass redundancy notifications. The ECJ remains firm in its stance on the invalidity of dismissals.
The EU Mass Redundancy Directive and its implementation § 17 KSchG regulate the obligations of employers in the event of collective redundancies.
Before a mass redundancy, the employer must:
- consult the works council
- submit a written notification of the planned mass redundancy to the competent employment agency. This must contain all relevant information about the intended collective redundancy and the consultations with the works council, in particular the reasons for the redundancy, the number of employees to be made redundant, the number of employees normally employed and the period during which the redundancies are to be made.
Redundancies only take effect 30 days after the notification of mass redundancy (redundancy ban).
The Second Senate of the BAG essentially referred the following questions to the ECJ:
- Can dismissals only take effect after the expiry of the dismissal protection period?
- Does the expiry of the dismissal protection period not only require a mass dismissal notification, but must this also comply with the requirements of the Mass Redundancy Directive?
- Can an employer make up for a previously missed mass layoff notification after giving notice of termination?
- Can it be left to the employment agency to determine, in a manner that is final for the employee and binding on the labour courts, when the dismissal protection period expires in a specific case?
The ECJ commented on these questions in its decision of 30 October 2025 (C-134/24) as follows.
- The ban on dismissals guarantees a minimum period of time that must be available to the employment agency to find solutions for the employees affected. Terminations can only take effect after the ban on dismissals has expired.
- The ECJ considered the second question to be purely hypothetical and therefore did not answer it.
- In the context of a planned collective redundancy, it is not permissible for the employer to terminate an employment contract before the collective redundancy notification and for the termination to be suspended until the deficiencies in the notification have been remedied.
- The ECJ again did not comment on the fourth question, as it would also amount to the preparation of a legal opinion. This is not the task of the ECJ.
Conclusion
The consequences of employers failing to fully comply with their obligations in the event of collective redundancies remain serious, resulting in the redundancies being declared invalid. The ECJ rejected the BAG’s intention to ease the burden on employers.
Summary of the key facts
- Terminations may only be issued after proper notification of collective redundancies has been given.
- Subsequent rectification of an incorrect notification of collective redundancies does not render the terminations effective.
- If the employer subsequently issues proper notification of collective redundancies, they must then issue new notices of termination.
