Legal protection options for the employer, as things do not always go well

The German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) and the Election Rules (Wahlordnung – “WO”) contain detailed provisions as to the requirements for an election and the election procedure. However, the large number of details also makes elections more susceptible to mistakes.

Correction order to correct mistakes

If mistakes become apparent in the ongoing election procedure, the employer may seek a preliminary injunction to have the mistakes corrected. As correcting mistakes is a less drastic measure than discontinuing the election, the claim for correction takes precedence.

What is required is a significant violation of the rules that is capable of distorting the election result. However, a right to demand corrections only exists if the corrections do not mean that mandatory time periods or deadlines of the election procedure will not be complied with. By contrast, if the correction can no longer be made in the current ballot (in particular because time periods would otherwise be shortened in an inadmissible manner and this would once more result in mandatory election rules not being observed), a correction order is inadmissible. Otherwise, the correction enforced in court would give rise to new reasons to contest the election.

High hurdles for an order to discontinue the election

According to case law, a works council election may only be discontinued in the event of serious violations. Even though the law only makes mention of contesting an election but not of discontinuing it, the employer should not be required to knowingly tolerate serious violations and be dependent on subsequent legal protection, particularly since the employer must bear the cost of the election that needs to be repeated.

The German Federal Labour Court (Bundesarbeitsgericht – “BAG”) takes the view that an application for a preliminary injunction seeking to discontinue the election is only justified if the works council election would presumably be null and void. This means that an order to discontinue an election may only be issued if “the general principles that apply to any proper election are violated to such an extent that even the appearance of an election that conforms to the law no longer exists.” This is the case, for example, where a works council is intended to be elected for a business that already has a works council. In addition, this is the case where the body acting as electoral board has never been appointed. This strict criterion is not uncontroversial.

In terms of objective and legal consequence, a distinction must be made between discontinuing an election for good and discontinuing an election for the purpose of initiating a new election. If, for example, the unit for which a works council is intended to be elected is not eligible for a works council or a works council already exists, the only option will be to discontinue the election for good. By contrast, if the election can actually be initiated and held without any mistakes, discontinuing the election and initiating a new election will be the less drastic measure.

Contesting the election, or: Good decisions take time

The election may be contested within a period of two weeks after the announcement of the election result. If the election is contested, this will lead to a subsequent examination of whether there has been a violation of essential rules regarding the right to vote, eligibility or the election procedure, unless the violation could not have altered or influenced the election result.

Considering the two-week period allowed to contest an election, the duration of the proceedings when contesting an election is considerable. By decision of 29 April 2021 (7 ABR 10/20), for example, the German Federal Labour Court ruled on an action to contest an election held in 2018 in which it was disputed whether the electoral board had been wrong in not admitting a particular list of candidates.

In light of the detailed procedural rules and the legal framework, there are numerous sources of mistakes that result in an election being contestable. Violations can be committed both intentionally and unintentionally.

Examples from the past where a right to contest existed include a violation of the principle of secret ballot committed by supervising the casting of the votes, the admission of persons not entitled to vote to the election or, more recently, the casting of votes without using ballot envelopes.

If an election is successfully contested, it is established that the election was invalid. In this case, new elections must be initiated in the same way as elections are initiated in a business without a works council, except where the mistake can exceptionally be corrected following an action to partially contest the election – for example, if an application has been made to determine the correct election result. Any works agreements entered into in the meantime will remain effective though.

Nullity of the election if it does not even appear to be a proper election

The legal protection options are completed by the option to have the election declared null and void. Declaring an election null and void is only justified if the fundamental principles of electoral law have been violated to such an extent that the election does not even appear to be in conformity with the law. This will rarely be the case, however, which is why in judicial proceedings, the application to declare the election null and void is generally combined with an action to contest the election. Unlike in the case of an election that is contestable, the determination of the nullity of an election has retroactive effect such that any legal acts that have been performed by the works council in the past are ineffective.

Conclusion and recommendations for action

Employers should keep an eye on compliance with the legal framework during elections. Particularly in light of the long duration of judicial proceedings and the cost of repeating elections, we would recommend trying to have any mistakes corrected already during the election.

Dr Astrid Schnabel, LL.M. (Emory)

Dr Astrid Schnabel, LL.M. (Emory)
+49 40 18067 14072