In the case of universal succession under corporate law, the new legal entity assumes the position of employer without this being a transfer of business in the sense of. § 613a Abs. 1 sentence 1 BGB would arrive. If a partnership is merged into a corporation or if a corporation as the last remaining shareholder of a partnership acquires all shares, this is a case of universal succession under corporate law.

In its decision of February 21, 2008 (- 8 AZR 157/07 -), the Eighth Senate was able to leave open whether a transfer of operations within the meaning of. § 613a BGB was present. However, he pointed out that the identity of the business owner had changed and that this was caused by a legal transaction, which suggests that there was a transfer of business.

A right to object according to Section 613a Para. 6 BGB against the transfer of an employment relationship as a result of a transfer of business does not exist in cases in which the previous legal entity expires and the new employer enters into the employment relationship through universal corporate law succession. If the employee does not want to continue the employment relationship with the new employer, he can exercise his right to terminate the contract without losing his rights. If his previous employer ceases to exist, the employee has an important reason in the sense of: § 626 Abs. 1 BGB because of its Article 2 Para. 1 and Art. 12 para. 1 GG guarantees contractual and professional freedom.

A claim for damages according to Section 628 Para. 2 BGB generally does not apply in these cases. A restructuring under corporate law that leads to the extinction of the previous employer is not conduct on the part of the employer that violates the contract. State laws can restructure public service legal entities. Such laws may provide that the employment relationships of employees in the restructured areas are transferred to a new legal entity without giving the employees the right to object to the transfer of their employment relationship. A right to object does not arise from the Civil Code, since restructuring by law is not a legal transfer of business. European Community law also does not provide for such a right to object.

However, the free choice of employer is protected by the fundamental right to freedom of occupation under Article 12 of the Basic Law. A legal regulation through which the employer is replaced encroaches on this fundamental right. The intervention is constitutional to the extent that it is justified by reasons of public interest and is proportionate. In its judgment of December 18, 2008 (- 8 AZR 660/07-), the Eighth Senate confirmed the existence of such reasons with regard to a state law through which two university hospitals were merged to form a new institution under public law.

By law, the employment relationships of non-scientific employees were transferred to the new institution. The state parliament was authorized to legislate because the federal legislature only regulated legal business transfers and civil law conversions. The intervention of the state legislature in the plaintiff’s freedom to practice his profession, which is protected by fundamental rights, is justified. The restructuring and privatization of the clinic’s operations serve to maintain both clinics in the public interest and to continue scientific research and teaching at both locations. The intervention was proportionate and was also accompanied by a number of other measures – e.g. B. a multi-year job security – accompanied.