No correction of a voter list by preliminary injunction

Cologne Labor Court, decision of January 28, 2026 – 9 BVGa 2/26

In preliminary injunction proceedings, a decision was made on the correction of the voter list for a works council election scheduled to take place on March 2, 2026.

Facts

The applicant employer is a non-profit association and operates several locations throughout Germany in addition to its headquarters in Cologne. A works council has been formed at the employer, which has so far been elected by the employees of all locations. The basis for this is a works agreement from 2022, according to which a company-wide works council is formed for all businesses.

In January 2026, the election committee sent the election notice and voter list to the entire workforce. The employer then lodged an objection to the voter list and applied to the court to have around ten external locations removed from the list. In the employer's opinion, these locations were geographically distant and therefore qualified as independent parts of the company within the meaning of Section 4 of the Works Constitution Act (BetrVG). In the absence of an assignment decision, the employees working there were not eligible to vote. In addition, the works agreement was invalid because a local works council was not responsible for company-wide regulations.

Decision

The Cologne Labor Court rejected the application to correct the voter list and referred the employer to the possibility of contesting the election.

Although interim legal protection against measures taken by the election committee is possible in principle, strict requirements must be met for the claim for an injunction and the grounds for the injunction, which were not fulfilled in this case.

In the opinion of the labor court, the employer was unable to credibly demonstrate that the voter list was based with sufficient certainty on a fundamental misunderstanding of the company structure and was therefore actually incorrect. The labor court also considered the works agreement to be valid; in any case, it could not be assumed with the necessary certainty that it was invalid. The decisive factor for the court was that the current works council was the democratically legitimized employee representation for all employees. This also applied if the works council election held in 2022 had taken place based on a misinterpretation of the company structure, provided that the election in 2022 was not contested. Since the election at that time was not contested, the supposedly independent part of the company formed a single entity under works constitution law with the main company.
There were also no grounds for an injunction, as a correction of the voter list would outweigh a subsequent election challenge in the weighing of consequences. In the event of an election correction, approximately 100 employees would be without employee representation; in contrast, conducting a regular election challenge procedure was the milder remedy.

The decision is not yet final.

Practical tip

The decision of the Cologne Labor Court highlights the high hurdles that must be overcome in order to intervene in ongoing works council elections.
A correction of the voter list during the ongoing election process can only be obtained in preliminary injunction proceedings in the case of serious and obvious procedural errors. There is a noticeable tendency for courts to refer employers to the contestation procedure in cases of doubt about the legality of the voter list. Since this means that the works council, which may have been elected incorrectly, remains in office until the court decision, employers should intervene as early as possible. The decision also shows that a lack of election challenges may have an impact on future works council elections and possibly reinforce unlawful conditions.

Employers who have doubts as to whether the works council or election committee is basing its decisions on the correct company structure should therefore seek legal advice in good time so that they can take the necessary measures.