The exclusion of employees of a group, employed outside of Germany, from the right to vote and stand as a candidate in elections of employees’ representatives on the supervisory board of the German parent company is not contrary to the free movement of workers according to the European Court of Justice in a ruling made on Tuesday 18 July (C-566/15).
Mr Konrad Erzberger is one of the shareholders of the German TUI AG limited company, which is in charge of the TUI tourism group, which is itself a global level asset employing 40,000 people in the European Union, Including 10,000 in Germany. In the German courts, Mr Erzberger contested the composition of the TUI AG supervisory council in which, in compliance with German law on employee participation, half the members are chosen by the shareholders and the other by the workers. According to Mr Erzberger, the German law on employee participation with workers contravenes the non-discrimination principle as stipulated by Union law whereby the latter only authorises the workers in a group employed in Germany to elect their representatives at the supervisory council and to be elected to it.
Requested by the Berlin Higher Regional Court in the referral case, the European Court of Justice took into account the conclusions of Advocate General Henrik Saugmandsgaard Øe, who affirmed that the German law on employee participation does not infringe the free movement of workers or the general ban on discrimination based on nationality. According to German law, Union rules do not prevent the collective representation or the defence of workers’ interests in management/supervisory bodies only applying to the workers in a group employed by companies located on its national territory.
With regard to the workers in the TUI Group employed in Germany and leaving the country to take up a post in a subsidiary of the group located in another member state, the Court considers that free movement of workers can modify their social rights, even if this is to their disadvantage. Moreover, in the host country, these workers are unable to benefit from the working conditions and rights they enjoy in the country of origin. (Original version in French by Mathieu Bion)