Germany: No Forbearance Claim For European Works Councils Under The EBRG

A European Works Council (EWC) cannot prevent an operational measure by an employer, in this case a business closure, by way of a forbearance order. This was established with legally binding effect by the Regional Labour Court of Cologne on 8 September 2011 (docket no. 13 Ta 267/11).

The German headquarters of a pan-European automobile supplier intended to close down a business in Spain. The EWC felt that it had not been properly informed about the planned change of business and applied for the issue of an interim injunction with which the employer was to be prohibited from taking such action.

The Regional Court of Cologne rejected this application and determined that the EWC does not have a forbearance claim against the employer, and that is to say even if the employer had actually fulfilled its obligations to inform and consult pursuant to Secs. 29 et seq. German Act on European Works Councils [Gesetz über Europäische Betriebsräte, EBRG]. The Regional Court of Cologne justified its decision on grounds that the EBRG contains neither a forbearance claim in favour of the EWC – as opposed to Sec. 23 para. 3 German Shop Constitution Act [Betriebsverfassungsgesetz, BetrVG], for example, for the German works council – nor does it contain cooperation rights, never mind codetermination rights, of the EWC which would make the effectiveness of actions taken by the employer dependent upon the works council's consent. The EBRG solely safeguards the rights of the EWC through a provision on fines (Sec. 45 EBRG).

The decision of the Regional Court of Cologne makes it clear that the EWC – and the same must also apply to the works council of a European company ("Societas Europaea, SE") - is limited to information and consultation rights and cannot stop the company from exercising its entrepreneurial freedom of decision. In established case law, however, French courts grant EWCs a forbearance claim against the enterprise. Hence, the decision of the Regional Court of Cologne cannot simply be transferred to situations where the EWC has its seat outside of Germany. For Germany, however, this is a positive clarification.

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