By resolution of April 22, 2009 ( 4 ABR 14/08 ), the Fourth Senate confirmed its case law on dynamic references agreed in individual contracts to the applicable collective bargaining provisions for an employment contract concluded after December 31, 2001.
According to this, it is a constitutive reference clause that is not affected by the loss of collective agreement if the employer’s collective agreement to the collective agreements referred to has not been made a condition of termination of the agreement in a way that is recognizable to the employee.
A personnel transfer agreement concluded between a business transferor and a business purchaser cannot establish a direct entitlement of the employees already employed by the legal predecessor to the employer to dynamically apply collective agreements, as this would be an impermissible contract to the detriment of third parties.
In the personnel transfer agreement, however, a contractual claim can be established against the employer in favor of the employees covered by it to agree on the dynamic reference of the collective agreements mentioned in the personnel transfer agreement with them. The reference to a specific collective bargaining agreement can only be interpreted, beyond its wording, as a large dynamic reference to the collective agreement applicable to the company in a technical or operational sense if this arises from special circumstances.