The transformation of a national company into a European company (SE) must not weaken the participation of trade unions in the composition of the supervisory board of that company, the Court of Justice of the European Union (CJEU) said in a judgment on Tuesday 18 October (Case C-677/20).
In Germany, the trade unions IG Metall and ver.di are challenging the way in which employee representatives are appointed to the supervisory board of the European company SAP, which is composed of equal numbers of members representing shareholders and employees. These appointment procedures no longer guarantee the presence of trade unions among the employee representatives on the supervisory board, as was the case before.
In a case brought by the German Federal Labour Court, the CJEU has interpreted Directive (2001/86) supplementing the Statute for a European company. This directive does not establish a single European model of employee involvement applicable to European companies. However, it provides that, in the case of a European company established by transformation, the agreement on the arrangements for employee involvement applicable to that company must be at least equivalent to that which existed before the transformation of the company into a European company (the ‘before and after’ principle).
The court has ruled in favour of the plaintiffs. It notes that German law adopts the ‘before and after’ principle. Therefore, the arrangements for appointing employee representatives to the supervisory board of the European company SAP should continue to provide for a separate ballot for the election of candidates proposed by the unions.
The European court clarifies that it is not only the German trade unions that are entitled to present candidates in the separate ballot, but that this right should be extended to all trade unions represented in the European company so as to ensure equality between them.
See the judgment: https://aeur.eu/f/3o5 (Original version in French by Mathieu Bion)