4.2.4 A bird’s-eye view of the ruling of the Landesarbeitsgericht Düsseldorf in the case of Kücükdeveci

181. After the judgment of the Court of Justice in Kücükdeveci Swedex and Kücükdeveci settled the case. Nonetheless, the parties requested a ruling on the costs of litigation (Kostenentscheidung) at the Landesarbeitsgericht Düsseldorf, which ultimately delivered a profound ruling in which it reconsiders the settlements agreed on by the parties as well as the nucleus and effects of the judgment of the Court of Justice.1

182. In accordance with the Court of Justice’s judgment, the Landesarbeitsgericht holds that in case of a dismissal the period of employment before the employee in question turned 25 years of age should also be taken into account in the calculation of the term of notice (Kündigungsfrist). The Landesarbeitsgericht Düsseldorf concludes that §622 II 2 BGB should be set aside due to its incompatibility with the principle of non-discrimination on the basis of age.

The remaining part of the provision, including §622 II 1 no. 4 BGB, remains intact. This provision regulates the regular terms of notice without different treatment on account of age. This re-enforced rule is applicable to all dismissals after 2 December 2006. For Kücükdeveci this results in the right to a term of notice of four months, instead of only one month. From the decision by the Landesarbeitsgericht it becomes clear that in the settlement Swedex has agreed upon a extension of the notice period by three months, resulting in the subsequent payment of the amount corresponding to three months of pay.

183. The Landesarbeitsgericht states that an employer who has relied on the applicability of §622 II 2 BGB, can successfully claim the protection of its legitimate expectations only in exceptional circumstances. Firstly, legitimate expectations can be protected if before the publication of the judgment of the Court of Justice the parties to a conflict already settled their case, which was not the case here.2 Secondly, legitimate expectations can be protected if the ‘retroactive’ extension of the notice period would result in unreasonable, disproportionate hardship (unzumutbare Härte) on the side of Swedex. This means that the extension of the notice period may not be unreasonably onerous in view of the interests involved, and that it may not endanger the continued existence of Swedex.3 Because Swedex does not experience an unreasonable hardship due to the extension of the term of notice, the Landesarbeitsgericht states that Swedex cannot successfully invoke the protection of its legitimate expectations with respect to the law applicable at the time of dismissal.4

184. The Landesarbeitsgericht determines on the basis of §91a ZPO5 – which stipulates that the costs of litigation should be reasonably divided in the light of the outcome of the case – that Kücükdeveci has to pay two thirds of the costs of litigation. After all, her appeal concerning the invalidity of the dismissal (Kündigungsschutzklage) was rejected. However, since the appeal concerning the term of notice was founded, Swedex is held to pay one third of the costs of litigation.6

185. Noteworthy is the Landesarbeitsgericht’sobiter dictum by which it clarifies why the dismissal in itself cannot be considered to be null and void:

In short, the Landesarbeitsgericht argues that the ineffectiveness of the termination of the employment contract of an employee who is discriminated against on account of their age would result in unequal treatment of employees that were employed when they were older than 25 and to whom the statutory notification period applies.8