Cancellation of a Works Council Election

Where an error in the election process can no longer be corrected, cancellation of the election remains the only available remedy. In the case at hand, the election committee had failed to approve a list of candidates for the works council election within the statutory timeframe — despite a prior preliminary injunction ordering it to do so. As a result, the election was cancelled (Regional Labor Court Hessen (LAG Hessen), decision of November 4, 2025 – 16 TaBVGa 118/25). 

Facts

The dispute arose in the context of preliminary injunction proceedings concerning the cancellation of a works council election. Applicants 1) through 5) were a trade union and several employees eligible to vote. Parties 7) through 9) were three employers providing services at Airport A as part of a joint operation, while Party 6) was the election committee formed for a works council election scheduled to take place from November 4 to 8, 2025.

The central issue concerned the admission of a candidate list bearing the code word "B," which had been submitted by a trade union but was not admitted to the election by the election committee. In prior preliminary injunction proceedings, the LAG Hessen had ordered the election committee, by decision of October 27, 2025 (issued at 4:07 p.m.), to approve this list and announce it within the company by midnight of the same day. Five of the nine election committee members had been present at the hearing.

A meeting of the election committee was subsequently scheduled for 8:00 p.m. but was postponed to 9:00 p.m. due to a lack of quorum. Ultimately, the meeting did not take place at all, as some members were unavailable due to illness, childcare obligations, and vacation. Consequently, no resolution was passed on the approval of the candidate list, prompting a motion to cancel the election. The labor court of first instance granted the motion. The employers and the election committee each filed appeals: the employers requested that the candidate list be approved and announced within two hours of the decision becoming final, while the election committee argued that there had been no arbitrary rejection of List B and that corrective action had failed due to practical circumstances.

Decision

The LAG Hessen upheld the decision of the lower court to cancel the election. 

The employers' appeal was unsuccessful because a correction of the election — which would have taken precedence — was no longer possible within the available timeframe. Pursuant to Section 10(2) of the First Ordinance for the Implementation of the Works Constitution Act (WO BetrVG), election proposals must be announced at least one week before the start of voting. This deadline had expired at midnight on October 27, 2025. A purposive (teleological) reduction of the provision was not an option, as voting had already commenced. The candidate list in question would therefore not have had the same electoral prospects as those lists that had been admitted in a timely manner.

The election committee's appeal was likewise dismissed. The court found that the election committee had failed to comply with the deadline set in the prior preliminary injunction proceedings, despite having been in a position to do so. It considered the delays and the non-participation of certain members in the belated meeting to constitute an obstruction of the election process. In particular, it would have been feasible to convene a meeting at short notice, given that the election committee had attended the hearing before the LAG Hessen with a quorum. The committee could have passed a resolution on the admission of the candidate list immediately afterwards — having summoned the remaining members by telephone in accordance with Section 1(4) WO BetrVG — and announced the result within the remaining eight hours. It would also have been prudent to schedule a precautionary meeting for the day on which the LAG's decision was expected.

Moreover, the election committee had not exhausted all available means to ensure a timely decision and announcement, such as digital decision-making (Section 1(4) WO BetrVG) or relocating the meeting to a venue where an absent member was staying due to childcare responsibilities. The court ultimately concluded that the failure to approve List B following the LAG's decision and the lack of publication of the list constituted deliberate and arbitrary discrimination, rendering the works council election null and void and thereby justifying its cancellation.

Practical Tip

The honorary office of an election committee carries significant responsibilities, particularly on days when statutory deadlines expire. Election committees are expected to remain responsive and ready to act at all times during critical phases of the process. This requires careful advance planning of all relevant dates, including accounting for members' vacation absences. To avoid situations in which deadlines expire at midnight, the election committee may specify a cut-off time by which, for example, candidate lists must be submitted, when determining the last day of a given deadline (Section 41(2) WO BetrVG).
The decision of the LAG Hessen underscores the principles of legal certainty and equal treatment of all election nominations under works constitution law.