Facts of the case

The trade union responsible for the employer requested the disclosure of employees' business email addresses or at least guest access via their own email address. In addition, the trade union demanded that the company provides a link to its website on the homepage of the intranet. According to the trade union, such a right follows from its constitutionally protected freedom of activity under Art. 9 para. 3 GG.

Background

The relationship between the trade union and the employer is determined both by the German Works Constitution Act (Betriebsverfasunsgesetz, BetrVG) and by the case law of the BAG on Article 9 para. 3 of the GG.

In principle, the employer must work together with the trade unions represented in the company in a spirit of trust for the benefit of the employees and the company. In this context, the trade unions and their representatives must also be granted access to the company. However, this right of access is not unlimited. It is limited by the cases in which the tasks and powers specified in the BetrVG are exercised, as well as the employer's security and confidentiality interests. According to the wording of the law, there is actually no right of access for advertising purposes of the trade union, as advertising is a collective bargaining policy purpose and not a works constitution law purpose. However, in the past, the BAG derived a right of access from Art. 9 para. 3 GG also for the advertising of members. According to the BAG, a trade union cannot effectively perform its duties if it has no possibility of recruiting members. This includes not only (analogous) access to the company. This also includes the employer's obligation to tolerate the trade union sending advertising to business email addresses already known to it.

The unique characteristic of the case now decided by the BAG is that the trade union demanded that the company not only tolerates but also actively grants access to all business email addresses in order to no longer be limited to the business email addresses already known to it when advertising.

Key statements on the trade union's digital access rights

The BAG has clarified that:

• There is no right to the surrender of employees' business email addresses.
• There is no right to use the employer's digital communication channels.
• There is no entitlement to a link on the intranet on the part of the trade union.

In its ruling, the BAG states that Art. 9 para. 3 GG grants a trade union the fundamental right to use employees' company email addresses for advertising purposes and for their information. However, the BAG rejects an obligation to actively provide the business email address. Such an obligation would lead to an unreasonable disadvantage to the employer's interest in economic activity. When the courts determine the freedom of association, not only the interests of the trade unions must be taken into account, but also the fundamental rights of the employers. The interests of the trade unions are already satisfied by the fact that they are entitled to ask employees for their business email address on site at the company and to contact them via this address.

The BAG also clarified that there is no entitlement to a link to the trade union website on the company intranet. There is no statutory regulation in this respect in the BetrVG and is not intended by the legislator.

Practical advice

In practice, this is a very positive decision and important for the increasingly digitalized world of work. Overall, it is a step in the right direction. It remains to be hoped that case law will also create legal clarity in other areas of the digitalization of the world of work with decisions that are also convincing in practice. 

For the time being, it remains to be said on the employer side:

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