Contestation of the Election of Employee Representatives to the Supervisory Board in Case of Procedural Errors by the Central Election Committee

BAG, Decision of 3 December 2025 – 7 ABR 36/24

The election of employee representatives to the supervisory board under the German Co-Determination Act (MitbestG) is an organizationally complex procedure in which various election committees cooperate in a hierarchical relationship. Pursuant to Section 3(1) of the Third Election Regulation under the Co-Determination Act (3. WOMitbestG), the central election committee (Hauptwahlvorstand) bears overarching responsibility for the proper conduct of the election. A key obligation in this context is to review submitted nomination proposals without delay and to notify the representative of the proposing party (Vorschlagsvertreter) in writing, stating the reasons, in the event of invalidity or objection (Section 34(2) sentence 2 of the 3. WOMitbestG). In a recent decision, the Federal Labour Court (BAG) has now clarified the specific organizational requirements arising from this obligation for the central election committee and when a breach of these duties renders the entire supervisory board election voidable.

Facts of the Case

In a security services group with just over 20,000 employees, the central election committee was constituted for the election of employee representatives to the supervisory board, to be conducted by delegates pursuant to the 3. WOMitbestG. The basis of the operational organization was a collective bargaining agreement concluded with a trade union under Section 3 of the Works Constitution Act (BetrVG), on the basis of which, among other things, regional works councils had been formed.

However, no local election committee was constituted for the North Region operation, which employed more than 1,000 workers. Nevertheless, the chairwoman of the North Region works council submitted, on her own initiative, a voter list for this operation to the central election committee, despite the fact that it had not been prepared by a local election committee. In the same email, she stated that the local election committee would not meet until a later date. The central election committee accepted the voter list without further investigation and issued the announcement regarding the submission of nomination proposals with a deadline of 20 June 2022, 4:30 p.m.

On 17 June 2022 – a Friday following the Corpus Christi public holiday – a nomination proposal supported by 110 supporting signatures (Stützunterschriften) was submitted, which listed, among others, the chairwoman of the North Region works council as a candidate. During the period from 17 June to 20 June 2022, the majority of the members of the central election committee were absent. A review of the nomination proposal did not take place until 22 June 2022, i. e., after the expiry of the submission deadline.

In a further meeting on 6 July 2022, the voter list for the North Region operation was retroactively declared invalid, and the nomination proposal was not admitted to the election in its entirety – the central election committee did not consider the mere deletion of individual candidates to be sufficient. At the same time, the employees of the North Region operation were excluded from the election.

Several eligible employees challenged the election held on 29 September 2022. They objected in particular to an impermissible shortening of the deadline, the failure to conduct an early review of the voter list, and the belated examination of the nomination proposal. The employer side considered the challenge inadmissible and relied, among other things, on an alleged conflict of interest of the applicants’ legal representative and on alleged collusive cooperation between individual applicants and the chairwoman of the regional works council. The lower courts nonetheless granted the application; the employer side filed an appeal on a point of law.

Decision

The BAG dismissed the appeal on a point of law as unfounded and confirmed the voidability of the election. First, the BAG held that the admissibility of the challenge application is not negated by the fact that individual challenging employees had subsequently left their employment. The decisive factor is eligibility to vote at the time of the election; the need for legal protection (Rechtsschutzbedürfnis) only ceases when all challengers have left employment.

Furthermore, the objection that the applicants’ legal representative had previously advised the central election committee and was therefore subject to a professional bar on acting did not render the application invalid. A potential violation of Section 43a(4) of the Federal Lawyers’ Act (BRAO) affects neither the procedural mandate (Prozessvollmacht) nor the procedural acts performed by the lawyer. Equally, alleged collusive cooperation by individual applicants does not preclude the challenge, since the application was already based on independent grounds for challenge over which the applicants in question had no influence. Finally, it was irrelevant that a member of the central election committee had simultaneously stood as a candidate for a supervisory board seat.

On the merits, the BAG first rejected the claim of an impermissible shortening of the six-week submission deadline for nomination proposals. The central election committee is permitted to restrict the submission possibility on the last day of the deadline to the end of regular working hours, provided this point in time does not precede the end of working hours of the majority of employees.

However, the central election committee had violated essential provisions of the election procedure in two respects. First, it had breached its general duty to ensure proper conduct under Section 3(1) of the 3. WOMitbestG by accepting the voter list submitted by the works council chairwoman without further verification as properly prepared, although it could and should have recognized that the list had not been drawn up by a local election committee. According to the BAG, the central election committee should have contacted the members of the local election committee known to it by name and urged the proper preparation of a voter list. While the central election committee is not, in principle, required to step into the functions of local election committees, it must not simply accept errors by local election committees that are apparent to it without at least attempting to remedy them.

Second, the central election committee had violated its duty to review under Section 34(2) sentence 2 of the 3. WOMitbestG. The obligation to review submitted nomination proposals without delay constitutes an essential provision governing the election procedure. It serves to provide the representative of the proposing party with the opportunity to submit a new, valid nomination proposal within the submission deadline. Particularly in the final phase of the submission period, the central election committee must take organizational precautions to be able to convene at short notice and review incoming nomination proposals. The central election committee had failed to do so in this case, as the majority of its members were absent in the final days of the deadline and a review did not take place until after the deadline had expired.

The central election committee had correctly declared the nomination proposal invalid in its entirety rather than merely striking the ineligible candidate – because the nomination proposal is supported in its specific composition by the will of the signatories, such that subsequent amendments without the consent of all signatories are not possible. However, the late review deprived the submitting party of the opportunity to timely submit a new nomination proposal without the ineligible candidate.

The procedural errors were also causal, since it cannot be excluded that, had proper procedures been followed, a valid nomination proposal would have been submitted and the election result would have been different. The established violations gave rise to the voidability of the elections of all employee representatives on the supervisory board, including those of the senior executives and trade union representatives, since although there were three separate polls, these took place within a single unified election conducted by the same electoral body, and cross-group consensus-building among the delegates cannot be excluded.

Practical Recommendations

The BAG’s decision vividly illustrates the many procedural pitfalls inherent in the multi-tiered election process under the Co-Determination Act. Even organizational omissions that may appear minor in relation to the overall effort of a supervisory board election can provide grounds for the successful challenge of all ballots. For employers and all other parties involved in the procedure, several concrete recommendations for action arise:

• First, when planning the start of the deadline for the submission of nomination proposals, the central election committee should ensure that the deadline does not expire during a period in which a short-notice meeting to review incoming nomination proposals cannot be organizationally guaranteed. If the deadline expires on a Monday following a public holiday, for example, particular precaution is required – or a later start of the deadline should be chosen.
• Second, the central election committee must not rely on the assumption that voter lists transmitted to it have been properly prepared. Where there are indications that a voter list does not originate from a duly constituted local election committee, the central election committee must investigate and, if necessary, urge correction before issuing the announcement regarding the submission of nomination proposals.
• Furthermore, it is advisable to put in place clear organizational arrangements for the entire duration of the submission period, and in particular its final phase, so that the central election committee can convene at short notice at any time and review submitted nomination proposals without delay. The mere absence of members of the central election committee does not excuse a belated review. Given the numerous formal requirements of the election procedure, legal advice should be sought at an early stage in cases of uncertainty, in order to minimize the risk of a subsequent election challenge as far as possible.