In the case of § 23 para. According to a decision of the Third Senate of June 2, 2008 ( 3 AZB 24/08 ), the threat and, if necessary, determination of the fine provided for in Section 3 BetrVG is a measure of compulsory enforcement, not part of the discovery process. The labor court decision on determining the fine is therefore issued in accordance with the general rules of compulsory enforcement proceedings. This also determines the extent to which a legal remedy is permissible or not. Neither the ZPO’s right of appeal nor Section 78 ArbGG provide for the possibility of challenging the non-admission of the appeal with a complaint directed against it. The compulsory enforcement of titles issued in the resolution process is part of the resolution process. It therefore shares in the exemption from court costs ordered for this purpose as well as in the inapplicability of the ZPO rules on the reimbursement of out-of-court costs. The reference to the Eighth Book of the Code of Civil Procedure in Section 85 Para. 1 Sentence 3 ArbGG is to be interpreted restrictively as meaning that Section 788 ZPO, which imposes the necessary costs of enforcement on the debtor, does not apply. The obligation to bear costs depends on substantive law.
A decision on costs as part of the compulsory enforcement proceedings is not necessary in this respect. According to a decision of the First Senate of February 19, 2008 ( 1 ABR 86/06 ), the debtor of an enforceable court settlement iSv. § 85 Abs. 1 sentence 1 ArbGG, § 794 para. 1 No. 1 ZPO the inadmissibility of compulsory enforcement in a new decision-making procedure through an application to prevent enforcement in accordance with Section 767 Paragraph. 1 ZPO. The subject of the proceedings is the inadmissibility of compulsory enforcement of the title, not the creation of the enforceable claim.
The terminability of an agreement between the operating parties does not fundamentally depend on how it came about, whether through bilateral negotiations, an award from an arbitration board or a court settlement. A judicial settlement as such, ie. as a procedural agreement between the parties involved, which, if effective, ends the proceedings, cannot be effectively terminated. However, this does not necessarily apply to the material agreement made in the settlement. The inadmissibility of compulsory enforcement from a court settlement between the operating parties can result from the fact that one side has terminated the agreement reached through settlement.
In any case, such termination is not excluded if it is a non-enforceable, long-term company agreement or regulatory agreement and nothing else has been agreed. However, the termination may be irrelevant if the agreement only contains an obligation that follows directly from the law. In the proceedings on which the decision of the First Senate of March 18, 2008 ( 1 ABR 3/07 ) was based, the employer asserted, as part of an application to defend against enforcement, that the company to which the title referred and to which it applied , exists after a company merger and the combination of companies in accordance with Section 3 Paragraph. 1 No. 1 letter b BetrVG no longer. In addition, the employer argued that the title was not enforceable due to a lack of clarity.
A defense action based on this objection can be combined with the “classic” action to defend against enforcement in accordance with Section 767 Paragraph. 1 ZPO can be connected. The Senate has decided that the combination of companies through a collective agreement in accordance with Section 3 Para. 1 No. 1 letter b BetrVG does not in itself lead to the loss of the identity of the combined units under works constitution law. These become definable sub-units of the larger organizational unit under company constitution law, in which the agreements and (titled) obligations of the operating parties that existed at the time of the merger generally continue to apply, limited to the respective sub-unit. The title in question was not too vague. With regard to the right of co-determination according to Section 87 Para. 1 BetrVG there is an unavoidable need to use abstract terms when formulating the tenor.