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.
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
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