In 2005, the state of Hesse in the light of economic problems of the university hospitals to the decision the University Hospitals Giessen and Marburg together and then privatized. The purpose and adopted on 1 July 2005, which came into force law on the establishment of the University Hospital Giessen and Marburg (UKG), provides that all rights, duties and responsibilities of the previously independent teaching hospitals in the way of universal succession, to the "University Hospital Giessen and Marburg" as a newly built public institution to go . According to § 3 para 1 sentence 1 and 3 UKG were the working conditions of those involved in patient care and management of the two clinics non-scientific employees, who by then in the service of the country Hesse stood transferred to the University Hospital Giessen and Marburg. One of the provisions of § 613a para 6 of the Civil Code laws which provide for a legally operating business transition, the workers concerned confers a right to oppose the transfer of their employment to the new owner was not recorded.
The law also includes authorization to the new facility in the way to privatize the legal regulation. The privatization was in 2006. The University Hospital Giessen and Marburg, have been converted into a limited liability company. The country sold 95% of the shares of the newly created University Hospital Giessen and Marburg GmbH to a private hospital operator, who undertook to pronounce the end of 2010 no compulsory redundancies.
The complainant was a nurse and therefore as non-scientific worker of the University Hospital Marburg, in the country. She protested the transfer of the employment relationship to the University Hospital Giessen and Marburg, and later to the GmbH your claim against the State of Hesse for a declaration that their employment continues with the country had indeed in the Labour Court, but not before the Regional Labour Court and the Federal Labour Court success . The complainant was under any legal theory a right to. Both the reconciliation of employment and the non-granting of a right to appeal is through sound reasons of public interest is justified.
pleads with her constitutional complaint, the complainant essentially a violation of their fundamental right to freedom of choice and job retention. Moreover, she is injured in their right to fair trial, because the Federal Labour Court to the Court in advance of the European Union would have to submit the question of whether it follows from Community law (Directive 2001/23/EC) a right of workers.
The First Division of the Federal Constitutional Court has ruled that the by § 3 para 1 sentence 1 and 3, UKG and disposed of the specialized courts confirmed transfer of employment from land to the University Hospital Giessen and Marburg, protected by Article 12 paragraph 1 GG fundamental right to free choice of employment is inconsistent. The state legislature is required by 31 to meet December 2011, a new regulation. The challenged judgments are repealed and the case to the Regional Labour Court has been referred back to the proviso to suspend the proceedings until a new ruling.
The decision is essentially based on the following considerations: first
The state legislature engages the right guaranteed by Article 12 paragraph 1 GG free choice of employment on by because of the provision in § 3 para 1 sentence 1 and 3 will UKG University Hospital as a legal entity the employer of the complainant. Thus it is a new, imposed by their employers not freely chosen. At the same time, the workers concerned will be immediately removed from the employer of their choice. Special emphasis is replaced by the procedure also prescribes that, due to the planned privatization of the dislocation of workers in the hospital, a process in motion that they removed not only from the country's service, but in fact, of the public service. A constitutional interpretation of § 3 para 1 sentence 1 and 3, by providing for UKG a right to appeal according to § 613a BGB ruled out, given the deliberate decision of the country's legislature against a right of workers.
This resulted in § 3 para 1 sentence 1 and 3 UKG violation of the fundamental right of occupational freedom is constitutionally justified. The contested law intended to carry out the privatization of universities, which as such is a legitimate exercise of the power to organize the country. The failure to accord a right to appeal was easier to the perception that the country's legislature, the goal of privatization, and can thus be regarded as appropriate and necessary. The fact that the state legislature in order to facilitate its Privatization decision as the employer of his employees in the private autonomy of diminishes, the system does, however, disproportionate. For the enriched
in § 3 para 1 sentence 1 and 3 UKG reconciliation of employment causes a detachment of the country received from contractual ties, without a contrary intention of the employee's compliance with legal notice requirements must be ensured. Thus the worker is removed to a considerable degree of continuance. The exercise of a right to appeal would allow the employment relationship with the former employer. When was lost in the operation of the employment needs, would Although a notice of termination into account, but can withstand the demands of employment protection legislation must. Whether the worker can maintain his current employment with the employer in the long term, depends on the circumstances of the case. In weighing the risks involved but needs the private autonomous decision of the worker are reserved. The protected by Article 12 paragraph 1 GG private autonomy of the worker allowed legislators and courts are not taken to force supposedly better insight to decide which of several available range of employers offering more benefits, in place of the employee.
any case, if the change of Employer directly by law from employment by a public employer to a private employer is or if it is - as here - an intermediate step towards a planned privatization, it must protect the legislature's fundamental right of employees to have free choice of employment. The land also occurs in a privatization process in a dual role, namely, both (former) employer and as a legislature, which dissolves itself directly by law from the employers position and thus escapes its contractual obligations. This is not just the provision of § 613a para 6 BGB constitutionally required. As far as in § 3 para 1 sentence 1 and 3 UKG controlled transfer of employment but in general does not allow you to make the existence of the employment relationship to the land claims that this constitutes an unfair restriction on protected by Article 12 paragraph 1 GG interest of the employees in the maintenance of the selected contractor by the aims of the privatization goals is not justified.
second In contrast, the complainant is not violated their right to fair trial under Article 101 paragraph 1 sentence 2 Basic Law. From a constitutional point of view there are no concerns, however, that the Federal Labour Court for a preliminary ruling to the Court of has abandoned the European Union under Article 267, paragraph 3, TFEU. In particular, it could reasonably assume that it is missing a right of workers at a farm crossing on a European legal basis. Neither the transfer of operations Directive 2001/23/EC itself contains a provision contrary to law or the Court from the policy the employee has a right derived. Rather, he has ruled, in which he has dealt with questions about the right of appeal, stressing that the ordered in Directive 2001/23/EC legal consequence of that transfer, that is the transfer of the employment relationship to the company transferee, is mandatory. The fundamental rights the worker is from the perspective of the Court only owed that they can choose not effected by the transfer of business creation of a contractual relationship with the company transferee. He did, however, expressly refused to see the purpose of the Directive and is to continue that workers who do not wish to pursue their activities to operate purchaser, the employment relationship with the vendor can.
(Source: Federal Constitutional Court, the press release dated 02/16/2011 on Decision 1 BvR 1741/09 of 01.25.2011)
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