A ruling by the European Court of Justice (ECJ) today ensures that workers’ participation continues to apply without restriction at the software company SAP SE. Beyond the individual case, the Luxembourg judges have sent a signal for the representation of workers' interests on the supervisory boards of European public limited companies. The German co-determination law foresees seats for trade union representatives on the supervisory board. SAP SE wanted to exclude these secured seats for trade union representatives while converting into the European company form SE.
Isabelle Schömann, ETUC Confederal Secretary said:
"The ECJ has made an important contribution to protecting national workers’ participation and trade union rights. This is particularly significant because democratic participation in working life has all too often tended to face a headwind from legislation and case law at the European level in recent years. The European Commission should take the current judgement as a signal to turn this trend around and strengthen Democracy at Work.”
In its ruling today, the ECJ confirmed the view of the German Federal Labour Court (Bundesarbeitsgericht, BAG). In August 2020, the BAG had spoken out against the weakening of workers’ participation in the conversion of the software company SAP into an SE. According to the BAG, under German SE law, companies may not exclude the secured seats for trade union representatives on the supervisory board even in the case of a conversion into an SE - contrary to what SAP argued. Accordingly, a defining element of co-determination would be preserved. At the same time, the BAG decided to submit the question of interpretation to the ECJ as to whether EU law supports German SE law on this point.