Concept and Nature of Defensive Lockout
The defensive lockout is a term from labor dispute law and refers to a specific form of lockout by the employer. It is a collective measure in which employees are excluded by the employer from accessing the workplace and performing their work duties. The purpose of the defensive lockout is particularly to react to an already ongoing labor dispute, usually in the form of a strike, in order to exert counter-pressure on the workforce or the union and to balance power relations.
Legal Basis of the Defensive Lockout
Labor Dispute Law Context
The defensive lockout does not have an explicit statutory basis in German law but is recognized as part of the customary labor dispute law. Key impulses for the legal treatment of defensive lockouts mainly derive from the jurisprudence of the Federal Labor Court (BAG) and the Federal Constitutional Court (BVerfG), as well as from principles of freedom of association in accordance with Article 9 (3) of the Basic Law.
Distinction from Other Types of Lockout
The defensive lockout must be distinguished from other forms of lockout, particularly the offensive lockout and the general preventive lockout. While, in an offensive lockout, the employer uses the lockout as an aggressive instrument of pressure without any prior initiation of a labor dispute, the defensive lockout takes place only reactively, as a direct response to an already started strike or another industrial action by the employees’ side.
Requirements and Legal Admissibility
Requirements for the Defensive Lockout
According to prevailing opinion and established case law, a defensive lockout is only permissible if it complies with the principles of labor dispute law:
- Existence of a lawful, union-backed labor dispute
There must already be a lawful strike or a lawful collective action on the part of the employees.
- Equivalence of Means (Proportionality)
The principle of proportionality is essential: the defensive lockout must not be disproportionate to the prior labor dispute measures by the employees. An appropriate balance must be achieved.
- Reference to Collective Bargaining
The defensive lockout must regularly relate to a subject that can be regulated by collective bargaining, i.e., must occur in the context of a collective bargaining dispute.
Limits and Legal Restrictions
The legal limits are primarily set by the prohibition of excess as well as the obligation to respect freedom of association. A defensive lockout that is intended solely to intimidate employees or undermine freedom of association would be inadmissible. Furthermore, it must not violate mandatory labor protection laws or, for example, the General Equal Treatment Act (AGG).
Legal Consequences for Employment Relationships
Impact on Employment Relationship
During a lawful defensive lockout, the employment relationship is suspended. The primary mutual obligations, namely the duty to perform work and the duty to pay remuneration (salary), are suspended during this time. This means that employees have no entitlement to wages for the duration of the defensive lockout. Depending on the structure, this results in what is known as the exclusion of default of acceptance.
Social Law Implications: Unemployment Benefits and Social Welfare
Under current law, locked out employees generally lose their entitlement to remuneration. With regard to social security, it should be noted that, under certain circumstances, there is an entitlement to unemployment benefits pursuant to § 146 SGB III. However, this entitlement is excluded if the lockout is considered part of the labor dispute. Differences arise depending on the type of lockout and whether the employee was called to strike.
Case Law on Defensive Lockouts
Federal Labor Court (BAG)
In several landmark decisions, the Federal Labor Court has clarified the permissibility and constitutional embedding of the defensive lockout. Permissibility is measured primarily by collective legal legitimacy and by the principle of proportionality.
Federal Constitutional Court (BVerfG)
The Federal Constitutional Court has also examined the defensive lockout with regard to freedom of association and affirmed its fundamental legitimacy, as long as strike rights are not effectively devalued or undermined.
Defensive Lockouts in International Comparison
Internationally, and particularly in the European context, defensive lockouts are regulated differently. While in some European countries lockouts are heavily restricted by law or completely prohibited, in German law it is recognized as the last possible response in labor disputes.
Literature and Further Information
- BAG, Judgment of April 21, 1971 – 1 AZR 110/70
- BVerfG, Decision of June 26, 1991 – 1 BvR 779/85
- Däubler, Wolfgang: Arbeitskampfrecht, 5th ed., 2020
- Schaub, Arbeitsrechtshandbuch, 18th ed., 2023
Summary: The defensive lockout is a crucial instrument of collective industrial action on the employer’s side and is subject to strict legal requirements. Its permissibility is measured against criteria such as proportionality and reference to collective agreements; at the same time, the rights of employees guaranteed by the Basic Law must be preserved. Thus, the defensive lockout occupies a significant position within the structure of German labor dispute law.
Frequently Asked Questions
What legal steps can tenants take against a defensive lockout?
Tenants affected by a defensive lockout have various legal options to take action against this measure. Firstly, under tenancy law, they may demand surrender of the apartment pursuant to § 546 BGB if the lockout was unlawful, especially if there is no enforceable eviction title against the tenant. In such cases, the tenant can obtain a preliminary injunction from the court for access to the rented apartment. In addition, in cases of unlawful defensive lockout, the landlord can be liable for damages, including hotel expenses or other necessary expenditures arising from the unlawful denial of access (§ 280 BGB). An attempt by the landlord to resort to unauthorized self-help – that is, unilaterally locking out the tenant – may also be criminally relevant, for example as unlawful entry (§ 123 StGB), coercion (§ 240 StGB), or property damage (§ 303 StGB), such as when the door lock is replaced. It is advisable to immediately collect evidence and seek legal assistance to enforce individual claims and take appropriate remedies.
How does a defensive lockout differ from a justified eviction enforcement?
The defensive lockout fundamentally differs from justified eviction enforcement, as it regularly lacks the legal basis. While eviction enforcement requires an enforceable title under § 885 ZPO and the forced eviction is carried out by the court bailiff, the defensive lockout is often carried out unilaterally by the landlord without a court order or legal ground. There is thus no judicial review of lawfulness nor the mandatory protections for the tenant, such as granting appropriate eviction periods or the opportunity to apply for protection against enforcement. Therefore, a defensive lockout is generally unlawful and can have both civil law and criminal consequences for the landlord.
What civil law claims do tenants have after a defensive lockout?
Tenants are entitled to damages in the event of an unlawful defensive lockout, in particular pursuant to §§ 280, 241(2) BGB. This includes costs for alternative accommodation, moving expenses, legal fees, as well as any further consequential damages resulting from the loss of residence. Furthermore, the tenant is entitled to restitution of the apartment (§ 546 BGB) and may file an application for interim relief to regain possession (§ 940a ZPO). Additionally, there may be a claim to prevent further unlawful actions (§ 862 BGB). In certain circumstances, compensation for pain and suffering may be claimed, especially if the landlord’s conduct causes a significant violation of personal rights.
What criminal consequences does a defensive lockout have for the landlord?
For the landlord, an unlawful defensive lockout can result in various criminal consequences. Specifically, unlawful entry (§ 123 StGB) may apply if the landlord enters the tenant’s apartment without authorization, as well as coercion (§ 240 StGB) if the tenant’s will is affected by force or threat. If the door lock is changed unilaterally or items are removed, this may also constitute property damage (§ 303 StGB). In particularly serious cases, other criminal offences may be relevant, such as theft or embezzlement, if the tenant’s personal belongings are removed or withheld. Prosecution of such offenses generally requires a criminal complaint by the tenant.
How can a tenant secure evidence of a defensive lockout?
It is advisable to secure evidence immediately after discovering the defensive lockout in order to have a clear factual basis in case of a dispute. This includes documenting the incident through witnesses, photos, or videos, especially of exchanged locks or blocked doors. Written communications from the landlord or other indications, such as a notice on the door, should also be preserved. It is also recommended to keep a log with date, time, and detailed description, and to ask possible witnesses, such as neighbors, to provide a written statement of the events. Engaging a locksmith as a witness may also be helpful if access must be regained. Finally, legal advice should be sought promptly to prepare the evidence and initiate legal action.
What deadlines must be considered when asserting claims following a defensive lockout?
The limitation period for claims for damages arising from a defensive lockout is generally governed by the general rules of §§ 195, 199 BGB, according to which the limitation period is three years from the end of the year in which the claim arose and the injured party became aware of the facts giving rise to the claim. In the case of interim relief for recovery of possession, there is no fixed deadline; however, the application should be made as quickly as possible after the lockout to address the need for urgency – generally within a few days. If the violation of rights is tolerated for too long, the court may reject the application for preliminary legal protection. Therefore, prompt action is essential after the defensive lockout has occurred.
What is the role of the police in a defensive lockout?
In cases of a defensive lockout, the police primarily serve a hazard prevention function. When called to the scene, the police first check whether a criminal offense—such as unlawful entry, coercion, or property damage—has occurred. However, such cases are usually civil disputes, so the police cannot independently arrange for the restoration of possession, but often refer parties to the civil courts. However, the police can record criminally relevant conduct, secure evidence, and, if necessary, issue a ban from the premises. Tenants must generally pursue the enforcement of access to the apartment for possession protection through the civil court, not the police.
To what extent can a preliminary injunction be obtained in the event of a defensive lockout?
In the event of a defensive lockout, it is generally possible to apply for a preliminary injunction under §§ 935 ff. ZPO as part of emergency legal protection. The aim here is the provisional restoration of possession of the apartment, since the lockout constitutes a disturbance of possession and awaiting regular legal proceedings is usually unreasonable for the affected tenant. The court issues an appropriate order after a summary examination of fact and law, provided it is credibly demonstrated that there is unlawful deprivation of the apartment and an urgent need for interim protection (“urgency”). The injunction may be granted within a few days. It is advisable to present all relevant documents and evidence (e.g., lease contract, proof of rent payments, photos of the lockout) to improve the prospects of success and demonstrate the urgency of the application to the court.
