The rights of trade unions are not extensively addressed by existing German legislation. The focus is on unions’ freedom of association, which is constitutionally protected. In principle, this allows them not only to address their members in order to maintain and secure their existence, but also to inform non-organised employees (or employees who are organised differently) about their activities and to recruit them as new members. Classic union advertising measures include postings on bulletin boards, distributing flyers, and holding ‘advertising events’ during break times. Unions generally have a legal right of access to the company premises for these kinds of measures.
The broad understanding of unions’ freedom of association finds its limits in the employer’s basic constitutional property rights and rights to free economic activity. In addition, freedom of association must also be reconciled with the employees’ rights to informational self-determination and their negative freedom of association (i.e. their freedom not to associate with a union). All of the positions concerned must be balanced in such a way that they are as effective as possible for those involved.
The content and scope of the right of physical access to the employer for the purpose of recruiting members has already been outlined by the courts in the case law in a way that is capable of generalization. In the analog world, the practice is likely to be considered ‘established’ – even if, of course, there are still some open questions.
In view of the increasing digitalization of working life, trade unions no longer want to rely on these classic (analog) access routes and are looking for digital options.
In a groundbreaking 2009 decision, the Federal Labour Court granted unions a digital right of access to the employer for the first time. According to this decision, unions may use company email addresses as a means of communication for information and advertising purposes, and the employer must tolerate this as long as it does not lead to an impairment of the operational process or a disruption of industrial peace.
The scope of this digital access right has since been rarely addressed in the highest court rulings, and many questions have therefore remained unanswered. As a result, trade unions have made demands for intranet access and access to other sensitive communication systems. In response, employers have pointed to significant IT security risks that could only be minimised with considerable personnel and cost expenditure on the part of the employer. Employers also point to data protection, which in 2009 did not play the decisive role that it has since the GDPR came into force in 2018.
With the recent decision of the Federal Labour Court, important limits have now been set on the trade unions’ right of digital access to the company, thus creating legal clarity.
In this decision, the Court, after weighing the interests of all of the parties concerned, denied the union a right to demand from the employer:
The Court pointed out that the union would not be completely prevented from using the employer’s email system for advertising or information purposes; the decision therefore cannot be seen as a departure from the 2009 decision. However, the Court ruled that the union had a viable and adequate means of protecting this right by simply asking employees for their company email address on site at the employer’s premises. The Court also pointed out that – unlike in the public sector - there is no legal basis for linking on the intranet and no unintended regulatory gap in this regard for the private sector.
The Federal Labour Court‘s result is in line with lower court decisions on the right of digital access and with the prevailing voices in the legal literature. Despite preliminary consideration of a digital right of access for trade unions to the employer, as envisaged in the initial draft of a Federal Collective Bargaining Act from September 2024, the legislature has not enshrined such a right in ordinary law for the private sector. Such a right would also have to be in line with the constitutional requirements.
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