4.2.5.1 Disapplication of the provision that is contrary to Union law

186. The Landesarbeitsgericht supports the outcome of the compatibility review carried out by the Court of Justice.1 The Landesarbeitsgericht recalls Mangold and Kücükdeveci and states:

The choice of words of the German court demonstrates very clearly the technical juridical approach towards the consequences of a substantive compatibility review in which the provision of national origin was found to be contrary to Union law.3 Clearly, the Court of Justice’s requirement that such a provision should be set aside or disapplied does not automatically result in the invalidity of the provision that was found to be contrary to Union law (gemeinschaftsrechtwidrig).4 Yet, a procedure on the constitutionality of §622 II 2 BGB is not necessary for the provision to be inapplicable on the basis of Union law (Anwendungsvorrang). The Landesarbeitsgericht recalls: “[d]er Vorrang des Unionsrechts wird verfassungsrechtlich durch Art. 23 I GG flankiert”.5The follow-up question is what the impact of the disapplication is on the relationship between private parties. Further, what is the impact of a substantive compatibility review that results in the conclusion that a provision of national law is gemeinschaftsrechtwidrig upon other cases in which this problematic provision has been applied? And, what is the reference date establishing from which moment on the provision is to be set aside? In respect thereof, does this obligation of disapplying the provision have ex tunc effect? The current section builds on the analysis of the Landesarbeitsgericht’s decision and the concrete answers to the questions in the case at hand; the evaluative discussion of these questions is saved for later.6

187. Concerning the obligation upon national courts to set aside any provision of national law that conflicts with Union law, the Landesarbeitsgericht indicates that only part of the provision should be set aside – i.e. the part that was found to be gemeinschaftsrechtwidrig.7 The rest of the provision, which constitutes mandatory law, thus remains in effect and applies to the situation at hand. The concrete consequence of the disapplication would be that on the basis of §622 II 1 no. 4 BGB the extended period of notice should – ex post facto – be respected. With regard to the broader impact of the Gemeinschaftsrechtswidrigkeit of §622 II 2 BGB, the Landesarbeitsgericht states that the substantive compatibility review that resulted in the obligation to disapply the problematical provision reaches further than the main proceedings; the disapplication of the provision extends over all dismissals from 2 December 2006 onwards.8 This reference date for the mandatory disapplication of §622 II 2 BGB is the date upon which the implementation deadline for the relevant directive had expired. Note that the Landesarbeitsgericht’s decision has no erga omnes effect; the Landesarbeitsgericht just repeats the obligation phrased by the Court of Justice and clarifies to which dismissals the obligation applies.