Is the guarantee of a parent company useful?

According to the General Advocate Mr. Jean Richard De La Tour, yes. We are awaiting the ruling to be handed down by the Court of Justice of the European Union, but for now his opinion is that the worker could sue in Germany.

The case is not uncommon. A manager works for a company of a business group and is transferred to another company within the group. To ensure the responsibilities of the assignee, the worker requests and receives the guarantee of the parent company of the group. The problem arises when the company fires the worker and does not pay his compensation and remuneration. And, to finish complicating the situation, it files bankruptcy and declares itself insolvent.

The first question at that point is where to file the lawsuit. In the case presented, the parent company resides in Canada, the contracting company in Switzerland and the worker in Germany. In general terms, the worker is interested by proximity and protection to sue in Germany. It does so and after losing in the first instance and winning on appeal, its Supreme Court asks the CJUE if Germany could be competent to decide the case.

The German Court considers the possibility that the guarantor can be considered the employer of the worker or that the worker can be considered a consumer. In both cases, he could sue in Germany. The General Advocate is of the opinion that a company that guarantees another of the group that has hired a worker can be considered as an employer, for the purposes of the regulations that allow the claim to be filed in Germany. However, he believes that he cannot be considered a consumer.

To the question that serves as the title of this comment, it is understood that if the guarantee of the parent company can be claimed in Germany, and the parent company has to litigate there, the guarantee is effective. Otherwise, it is more than debatable. My opinion is that indeed the guarantor parent company should be considered a company for labor purposes. It seems evident that the worker would not have agreed to the subrogation if he had not had the guarantee. And the payment, and its effectiveness, is the most fundamental part of the benefit to which the company is obliged. Or the most important right of the worker. If the group has divided its responsibilities as employer and guarantor, it cannot claim that the guarantee is accessory, residual, or of little importance. Therefore, a Canadian company should be able to be sued in Germany, (under Article 21.1 of the R no. 1215/2012). However, I do not agree that a worker cannot be considered a consumer for the purposes of the same regulation. I understand that professional or business activities do not affect an employee when he is not the one who performs the activity but the one who works for the person who performs it. Therefore, also in the event that the Court of Justice does not understand that the Canadian company acts as an employer, I believe that it would be lawful sue in Germany by considering the worker a consumer, according to article 18.1 of the same Regulation.

I leave a link to the Conclusions, in case someone is interested.