Employers are not obligated to provide trade unions represented in the establishment with work email addresses of employees for the purposes of membership recruitment or to grant digital access to internal communication networks. The Federal Labour Court (Bundesarbeitsgericht, BAG) has now ruled on this legal matter which has been debated for many years (cf. BAG, judgement dated 28 January 2025 - 1 AZR 33/24 (German only)).
Legal framework
Section 2 (2) of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) provides trade unions with a sub-constitutional access right. This access right has not been generally developed, however, but rather is subject to the requirement that the access serves to safeguard the rights and obligations under Works Council constitution law. Guaranteeing general ’coalition-specific’ powers such as recruiting members can therefore not be supported by section 2 (2) BetrVG (cf. BAG, judgment dated 28 February 2006 – 1 AZR 460/04 (German only)). Trade unions recruiting members in establishments is, however, included in coalition-specific actions protected under Art. 9 (3) of the German Basic Law (Grundgesetz, GG) (cf. BAG, judgment date 22 June 2010 - 1 AZR 179/09 (German only)). It should be noted here that recruiting members in establishments requires the consent of the employer and can lead to conflict with the house and property interests protected by the German Basic Law as well as their freedom to carry out economic activities pursuant to Art. 12 (1) GG, Art. 13 GG, Art. 14 (1) GG. This conflict is to be solved on an individual basis by practical concordance, i.e. in such a manner in which the conflicting basic laws are applied to the furthest extent possible despite their opposition (cf. BAG, judgment dated 22 May 2012 - 1 ABR 11/11 (German only)).
The BAG has already ruled on this basis for the parallel situation of analogue workplace that the conflict is solved, as the trade union has no right to send recruitment leaflets and information to employees using a company internal post distribution system of the employer (cf. BAG, judgment dated 23 September 1986 – 1 AZR 597/85 (German only)). On the other hand, trade unions are in any case entitled to use work email addresses known to them for the purposes of recruitment even without the consent of the employer, if the receipt and reading of these emails does not cause significant disruptions in the workplace (cf. BAG, judgment dated 20 January 2009 - 1 AZR 515/08 (German only)). The BAG made it very clear, however, that practical concordance requires taking into consideration the affected interests on an individual basis.
The decision
Facts of the matter
The facts of the case before the BAG were as follows (cf. BAG, judgment dated 28 January 2025 - 1 AZR 33/24 (German only)): The defendant employer was a large sporting goods manufacturer with more than 5,000 employees. The establishment had many stores and outlets across Germany in addition to its own central premises. Employees were permitted, in accordance with company guidelines, to work outside of the office for up to 20%/40% of their individual working hours. In the office the company used hot desking and only had eight workspaces available per ten employees. A significant proportion of company internal communication took place digitally. The Microsoft 365 app Viva Engage and group-wide intranet were used along with work emails. The work email addresses were generated on the basis of the employee’s name and the defendant’s domain for each employee.
The claimant trade union sought a log-on to the communication system for the purpose of recruiting members and specifically requested (1.) that the employer provide the trade union with all work emails for employees to send up to 104 emails to employees per year up to 5 MB in size, (2) alternatively, the employer was supposed to set up a log-on to the group-wide network on Viva Engage for the trade union as an internal user in order for the trade union be able to post a certain number of recruitment articles there and (3.) alternatively, the employer was supposed to set up a link to the trade union’s website on the front page of the intranet. The trade union based its demands in the appeal and appeal on a point of law on Art. 9 (3) GG. At first instance it also appealed on the basis of section 2 (2) BetrVG. The trade union justified its demands by the fact that digital communication is usual in the workplace and those employees working remotely or in the stores across Germany could only be reached digitally.
The decision
The Labour Court (Arbeitsgericht, ArbG) and the Regional Labour Court (Landesarbeitsgericht, LAG) (cf. Nuremberg LAG, judgment dated 26 September 2023 – 7 Sa 344/22 (German only)) rejected the claims. The BAG has now also rejected the trade union’s appeal on a point of law and held that none of the claims asserted by the trade union had merit.
The BAG held that there is no right to transmit anything to all employee work email addresses. Although Art. 9 (3) GG safeguards the trade union’s right to use work email addresses for recruitment purposes, this only includes those email addresses which are known to the trade union. Taking into consideration the conflicting basic rights of the employer pursuant to Art. 12 (1) GG, Art. 14 (1) GG and the basic rights of the affected employees pursuant to Art. 2 (1) GG in conjunction with Art 1. (1) GG and Art. 8 of the Charter of Fundamental Rights of the European Union (protection of personal data), Art. 9 (3) GG however, a restriction is to be made by way of practical concordance that there is no right to provide other email addresses. The BAG held that the trade union always has the opportunity to ask for the work emails of the employees on site at the establishment which only represented a minor interference with the employer’s and employees’ basic rights.
The same applies to the right to use the group-wide network via Viva Engage. In this respect, too, the negative impact on the employer exceeds the trade union’s interest to carry out recruitment measures protected under Art. 9 (3) GG.
The BAG held that there was also no right to have a link on the intranet as the legislature had already provided for this in section 9 (3) sentence 2 of the Federal Staff Representation Act (Bundespersonalvertretungsgesetz, BPersVG (German only)) for public service employees. This is not analogously applicable to the private sector due to an unintended regulatory gap.
Consequences of the decision
The Coalition Agreement of the outgoing German government stated that the traffic light coalition intended to create a right for trade unions to have digital access to establishments that corresponds to their analogue rights (2021-2025 Coalition Agreement, pg 56 “Collective Bargaining Autonomy” (German only)). This project was not implemented. It remains to be seen whether the upcoming German government will again take up this project. Until then the BAG has drawn a clear boundary with this decision (cf. BAG, judgment dated 28 January 2025 - 1 AZR 33/24 (German only)) which will have to be observed until there is a change in the law.
