On 16 May 2024, the German Group Works Council of Olympus failed in its lawsuit against management. The central question was whether an employee-less "letterbox company" in the legal form of a European Company (SE) must subsequently catch up on a negotiation procedure if it is brought to life and used as a group holding company with a large workforce. The European Court of Justice denies this claim because the legislator deliberately refrained from doing so. This decision could mean a massive attack for co-determination rights  in favour of the stability of the SE.

Olympus founded the employee-less SE in the UK in 2013 and all employee representatives were subsequently removed from the German Supervisory Board (see report in EWC News 3/2019). In 2017, the SE was relocated to Germany and now functions as a holding company for subsidiaries with 7,000 employees. A Special Negotiating Body (SNB) was never formed. The German Group Works Council filed a lawsuit against this. The Federal Labour Court referred the matter to the European Court of Justice in May 2022 (see report in EWC News 2/2022). Following the decision from Luxembourg, the Federal Labour Court must make a final decision on the case and examine whether and when there is an abuse of SE law.
 

The central management of Olympus in Hamburg not only rejects co-determination on the Supervisory Board, but also the formation of an SE works council. An SE works council can only be formed if there is an SE participation agreement or if negotiations between the SNB and central management have failed. In the present case, however, no SNB could be formed when the SE was founded because there was not a single employee in 2013. According to the judges in Luxembourg, such negotiations are no longer required at a later date. However, the formation of a European Works Council is also out of the question because the SE legal form is not subject to the EWC Directive. The judgement from Luxembourg thus opens up the possibility for the first time that a company can completely opt out of all cross-border forms of employee involvement.