FEDERAL CONSTITUTIONAL COURT

– 2 BvR 736/13 –

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the First Chamber of the Second Senate of the Federal Constitutional Court

with the participation of Justices

President Voßkuhle,

Gerhardt,

Huber

unanimously held on 16 October 2013:

2. Compulsory enforcement of the Partial Judgment by Default of the Munich Labour Court of 25 May 2011 – 35 Ca 17879/09 – is temporarily stayed until the decision concerning the constitutional complaint, for a period not exceeding six months.

R e a s o n s :

I.

1. The complainant is the H(…) Republic. A Greek citizen filed a claim against the H(…) Republic before the Munich Labour Court, requesting repayment of a sum of money that the Greek General Consulate had retained from his monthly gross salary payments. The complainant considers the retained sum to be a tax on the income earned by the claimant [in the initial proceedings] as a teacher employed at the H(…) Republic’s private elementary school in Munich and in the District (Landkreis ) of Dachau. Since the complainant did not appear for the conciliation hearing before the Munich Labour Court, the Court rendered a partial judgment by default on 25 May 2011, against which the complainant entered a protest [serving as a legal remedy pursuant to § 59 of the Labour Courts Act, Arbeitsgerichtsgesetz – ArbGG]. On 16 June 2011 an enforceable execution copy of the partial judgment by default was issued to the claimant.

On 28 September 2011, the complainant filed a reminder (Erinnerung ) [serving as a legal remedy pursuant to § 61(2) ArbGG in conjunction with § 732 of the Code of Civil Procedure, Zivilprozessordnung – ZPO] against the court certificate of enforceability issued in respect of the partial judgment by default. By order of 2 November 2011 the Munich Labour Court rejected the reminder. Following the complainant lodging a complaint subject to a time limit (sofortige Beschwerde ) against this decision, the Munich Higher Labour Court (Landesarbeitsgericht ), by order of 20 December 2011, amended the decision of the Munich Labour Court by declaring that the enforceable execution copy had been issued wrongfully and that compulsory enforcement on the basis thereof was altogether impermissible. The claimant filed a complaint on points of law (Rechtsbeschwerde ) against this before the Federal Labour Court.

By order of 14 February 2013, the Federal Labour Court reversed the decision of the Munich Higher Labour Court and rejected the complaint [subject to a time limit] that had been lodged by the complainant against the order of the Munich Labour Court.

2. In its constitutional complaint, the complainant claims a violation of Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG). It argues that the Federal Labour Court should have rejected the [claimant’s] complaint on points of law because it should have recognised the H(…) Republic’s tax-related measure as a sovereign act. The complainant further argues that there was relevant case-law on this issue by the Federal Labour Court and the Federal Constitutional Court. If the Federal Labour Court had intended to deviate from this or refuse to see the measure as a sovereign act, it would have had to refer the matter either to the Grand Senate pursuant to § 45(2) ArbGG, or to the Federal Constitutional Court pursuant to Art. 100(2) GG. The complainant claims that the Federal Labour Court’s failure to do so was arbitrary.

In its application for a preliminary injunction, the complainant requests that compulsory enforcement of the partial judgment by default of the Munich Labour Court of 25 May 2011 be temporarily stayed.

II.

The requirements for issuing a preliminary injunction are met. The application is admissible and well-founded.

1. Pursuant to § 32(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, to prevent imminent violence or for another important reason in the interest of the common good. In assessing whether the requirements of § 32(1) BVerfGG are fulfilled, the Court must generally apply a strict standard due to the far-reaching consequences of a preliminary injunction (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 and 217>; 104, 23 <27>; 106, 51 <58>). This standard is even stricter if the measure involved has implications for international law or for foreign policy (cf. BVerfGE 35, 193 <196 and 197>; 83, 162 <171 and 172>; 88, 173 <179>; 89, 38 <43>; 108, 34 <41>; 118, 111 <122>; 125, 385 <393>; 126, 158 <167>; 129, 284 <298>; Federal Constitutional Court, Judgment of the Second Senate of 12 September 2012 – 2 BvE 6/12 et al. –, Neue Juristische Wochenschrift – NJW 2012, p. 3145 <3146, para. 190>).

When deciding on a preliminary injunction, the arguments advanced to substantiate the unconstitutionality of the challenged measure must generally be left out of consideration, unless the declaration sought, or the application made, in the principal proceedings is inadmissible from the outset or clearly unfounded (cf. BVerfGE 89, 38 <44>; 103, 41 <42>; 118, 111 <122>; established case-law). In case the outcome of the principal proceedings cannot be foreseen, the Federal Constitutional Court must, in principle, only conduct a weighing of consequences. Accordingly, the disadvantages that would arise if a preliminary injunction were not issued but the constitutional complaint were successful in the principal proceedings must be balanced against the disadvantages that would arise if the preliminary injunction sought were issued but the constitutional complaint were unsuccessful (cf. BVerfGE 105, 365 <371>; 106, 351 <355>; 108, 238 <246>; 125, 385 <393>; 126, 158 <168>; 129, 284 <298>; Federal Constitutional Court, Judgment of the Second Senate of 12 September 2012 – 2 BvE 6/12 et al. –, NJW 2012, p. 3145 <3146, para. 191>; established case-law).

2. The constitutional complaint is neither inadmissible from the outset nor clearly without merits. Based on the complainant’s submission, a violation of the right equivalent to a fundamental right under Art. 101(1) second sentence GG cannot, at any rate, be ruled out from the outset. This right is less concerned with securing the autonomy of the individual but primarily guarantees minimum requirements for procedural fairness and equality of arms as a prerequisite for a correct decision (cf. BVerfGE 9, 89 <95>), and is thus applicable to all judicial proceedings. Therefore, any person that has the capacity of being a party to court proceedings under the relevant procedural rules or is affected by the proceedings (cf. BVerfGE 21, 362 <373>; established case-law) can invoke Art. 101(1) second sentence GG. This applies not only to domestic legal persons governed by public law (cf. BVerfGE 61, 82 <104>; 75, 192 <200>) but also to foreign legal persons governed by private law (cf. BVerfGE 18, 441 <447>; 21, 207 <208>; 23, 229 <236>; 64, 1 <11>) as well as those governed by public law, and hence also to foreign states (cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 1, 32 <37 and 38>; 9, 211 <213>).

Both the failure to refer pursuant to § 45(2) ArbGG to the Grand Senate and the failure to refer pursuant to Art. 100(2) GG may constitute a violation of the right under Art. 101(1) second sentence GG if such failure by the Federal Labour Court to make the required referral was not just an error in law but is also arbitrary (cf. BVerfGE 3, 359 <363 and 364>; 9, 213 <215 and 216>; 13, 132 <143>; 19, 38 <42 and 43>; 64, 1 <21>; 96, 68 <77 and 78>). The outcome of this assessment cannot be foreseen [in the current case], given the complexity of the legal situation. The respective questions which ought to have been referred can be derived with sufficient certainty from the [complainant’s] submission [in the initial proceedings] (cf. regarding this requirement in view of Art. 100(2) GG most recently Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 12 October 2011 – 2 BvR 2984/09 et al. –, NJW 2012, p. 293 <294>).

3. The balancing required under § 32 BVerfGG results in a positive outcome for the complainant.

a) If the requested preliminary injunction were issued yet the constitutional complaint were later considered to be unfounded, the compulsory enforcement of the partial judgment by default of the Munich Labour Court, which was not yet final, would only be delayed for the complainant. There appears to be no irretrievable legal detriment that might be suffered by the claimant because of this, especially in view of the fact that the sums in question amount to merely 5% of his salary. Moreover, these sums have in any case already been retained from his gross salary payments since 2002.

b) If a preliminary injunction were not to be issued but the constitutional complaint were later considered to be well-founded, severe disadvantages would arise.

While the enforcement of judgments against foreign states is not generally impermissible according to the general rules of international law (cf. BVerfGE 46, 342 <388 and 389, 392>; 64, 1 <23 and 24>; 117, 141 <154>), it is recognised that states enjoy immunity with regard to claims that derive from sovereign acts (cf. BVerfGE 46, 342 <364, 392>; 64, 1 <40>; 117, 141 <154>). Furthermore, to access the assets of a foreign state constitutes in any case a particularly severe interference with its sovereignty (cf. BVerfGE 117, 141 <154>).

An impermissible compulsory enforcement against a foreign state, the H(…) Republic, would moreover entail the danger that the Federal Republic of Germany would suffer severe disadvantages in the area of foreign relations. This has to be a major concern in the overall balancing (cf. BVerfGE 83, 162 <173 and 174>; 88, 173 <180 et seq.>; 89, 38 <43>), since it could lead other subjects of international law to doubt Germany’s commitment to public international law and its willingness to abide by customary international law in the future; this could result in disadvantages in the area of foreign relations.

c) In balancing the conflicting interests, the danger of disadvantages for the Federal Republic of Germany in the area of foreign relations arising from the provisional authorisation of compulsory enforcement takes precedence [over the interests of the complainant]. On the complainant’s side, the issuance of a preliminary injunction would lead merely to a delay in the satisfaction of claims, some of which are more than ten years old. There appear to be no other important issues at stake beyond actual settlement of the claim, specifically no irrevocable disadvantages or threats to his livelihood.