Who is faster? – On the "race" between implementing operational changes and works council elections

Facts of the case

An employer operated a business with 46 employees. Initially, there was no works council at the company. At the beginning of February 2025, the employer decided to relocate part of the business to another location. At the beginning of April 2025, it announced a total of 32 redundancies for operational reasons. It was not until the end of April 2025 that a works council was elected for the company for the first time. Invitations to elect the election committee had been sent out at the end of March 2025.

The newly elected works council considered its co-determination rights under Sections 111 et seq. of the Works Constitution Act (BetrVG) to have been disregarded in relation to the operational change that had been implemented and applied to the Stuttgart Labour Court for the establishment of a conciliation board to draw up a social plan.

In the works council's view, the employer had deliberately thwarted the timely election of a works council: at a works meeting in early March 2025, a representative of the employer had deliberately told untruths about the relocation plans. Details regarding the content and intention of such a statement remained disputed between the parties until the end. In addition, the employer accelerated the implementation of the operational change after learning of the plans to elect a works council.

The Stuttgart Labour Court (dated 31 July 2025 – 29 BV 181/25) rejected the works council's application on the grounds of obvious lack of jurisdiction on the part of the conciliation board.

The decision

The Baden-Württemberg Regional Labour Court concurred with the lower court and dismissed the works council's appeal against this decision. According to the case law of the Federal Labour Court (BAG), there are no co-determination rights under Sections 111 BetrVG (and therefore also no right to draw up a social plan) if a works council is only formed after the measure has been implemented. Even if a works council is already in the process of being established, the employer is not obliged to postpone implementation of the measure until after the election. This means that an employer is ultimately also permitted to accelerate the implementation of a change in operations, and there is no "undesirable race" under the legal system.

Nor does anything else follow in this case from an allegedly untrue statement about the relocation plans in March 2025. Even if such a statement had been made, it cannot be assumed that a (timely) works council election was thwarted. A false statement about operational plans does not violate the prohibition on obstructing works council elections under Section 20 of the Works Constitution Act (BetrVG). Furthermore, it had not been conclusively argued that such a statement had been made with the intention of preventing a works council election.

Consequences for practice

The Baden-Württemberg Regional Labour Court follows the clear line of the Federal Labour Court (dated 8 February 2022 – 1 ABR 2/21). The decision also convincingly elaborates on the protective purpose of Section 20 BetrVG and clarifies that even untrue statements about the content/schedule of a change in operations constitute breaches of duty but do not constitute obstruction of a works council election.

Practical tip

For employers who do not yet have a works council and are planning a change in operations, e.g. in the form of major staff reductions, parallel efforts to establish a works council represent a sensitive situation. The parameters for implementing a change in operations change significantly with a works council: the information and negotiation obligations under Sections 111 et seq. BetrVG can significantly delay the schedule. A social plan obligation for the measure can completely call into question the financial planning.

The decision once again makes it clear that employers may also accelerate the implementation of a planned operational change in order to "pre-empt" the formation of a works council.

However, it is also clear that obstructing works council elections (e.g. by withholding the necessary documents or infrastructure) is definitely not advisable. Companies should refrain from such actions not only because of the possible criminal sanctions for such behaviour: the ruling leaves open the question of whether genuine obstruction could lead to the granting of a "retrospective" right of co-determination.