The conversion of a German public limited company into a European company must not affect the existence of a separate ballot for the election of a certain quota of trade union representatives among the employee representatives on the company’s supervisory board. This specific ballot is indeed a characteristic element of employee participation in German labour law and cannot be set aside through the negotiation of an employee ‘involvement agreement’ in the new European company.
In these conclusions, submitted to the Court of Justice of the EU on Thursday 28 April (case C-677/20), Advocate General Jean Richard de la Tour responds to the German Federal Labour Court, which was seized by the German trade unions who, in the context of negotiations on an involvement agreement following the transformation of the SAP company into a European company, are contesting the election of their representatives to the company’s joint supervisory board through a joint ballot with the other workers’ representatives and not a separate ballot as provided for by German law. The German Court asks the Court to interpret Directive 2001/86/EC supplementing the statute for a European company with regard to employee involvement as to whether this specific ballot provided for under German law must be maintained or whether it can be set aside by the negotiation of the involvement agreement provided for in the Directive.
The Advocate General replied that this specific ballot should be maintained. He proposes that the Court should reply that the negotiating autonomy of the special negotiating body representing the employees in the context of this negotiation of the implication agreement cannot affect the existence of a separate ballot where, as is the case in German law, this specificity exists and is mandatory in the legislation applicable to the company to be transformed.
Link to the conclusions: https://aeur.eu/f/1fh (Original version in French by Francesco Gariazzo)