I. Introduction

§ 1 para. 1 German One-Third Employee Representation Participation Act (Gesetz über die Drittelbeteiligung der Arbeitnehmer im Aufsichtsrat – DrittelbG) grants employees of a joint-stock corporation (Aktiengesellschaft), a partnership limited by shares (Kommanditgesellschaft auf Aktien) or a limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) a right of co-determination within the supervisory board if the company in question has more than 500 employees as a rule. The situation is different under the German Employee Co-Determination Act (Gesetz über die Mitbestimmung der Arbeitnehmer – MitbestG), where a number of 2,000 employees is decisive.
According to the clear wording, the number of employees is to be determined “as a rule”. The legislator declares the regular number of employees to be decisive in order to prevent random results in the event of fluctuating employment figures. According to established case law, the actual number of employees is therefore not to be determined by counting them on a specific reference date, but by taking into account the past and future developments. The assessment period appropriate for this purpose (reference period) must serve the purpose of ensuring that fluctuations in the number of employees do not result in frequent changes in the form of co-determination. The courts regularly consider a reference period of 17 to 20 months to be necessary and sufficient for this purpose.
If, for example, a GmbH comes to the conclusion on this basis that it generally employs more than 500 employees, it must form a supervisory board, one third of which must be made up of employee representatives (cf. § 1 para. 1 no. 3 DrittelbG in conjunction with § 4 para. 1 DrittelbG). If the GmbH later comes to the conclusion that it no longer exceeds the threshold value as a rule, it must first publicly announce this in the so-called status procedure (Statusverfahren) in accordance with §§ 97 to 99 German Stock Corporation Act (Aktiengesetz – AktG) (which also applies to the co-determined GmbH in accordance with § 1 para. 1 no. 3 DrittelbG).
The status proceedings (Statusverfahren) give the affected parties listed in § 98 para. 2 AktG (in particular works councils, trade unions and shareholders) the opportunity to take action against the change in the composition of the supervisory board and to obtain a court decision. § 99 para. 1 AktG stipulates that the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG) shall apply to the proceedings. While the Code of Civil Procedure (Zivilprozessordnung – ZPO) follows the principle of submission (Beibringungsgrundsatz), i.e. the principle that each party must present the circumstances favorable to itself, the so-called principle of official investigation (Amtsermittlungsgrundsatz) applies in the FamFG, according to which the court must independently investigate the facts of the case if a corresponding application is made and then decide accordingly.

II. Decision of the BayObLG

In a new decision, the BayObLG has confirmed and further substantiated the case law outlined above.

1. Facts of the case

In the underlying facts, the defendant, a limited liability company operating in the field of logistics services, which had formed a supervisory board in 2017 on the basis of the DrittelbG, had initiated the status proceedings (Statusverfahren) because, in the opinion of its management, the requirements of § 1 para. 1 no. 3 DrittelbG were no longer met. While it generally had more than 500 employees in 2017, it now has fewer than 400 employees as a result of a staff reduction implemented in 2019. The management stated that it does not expect the number of employees to exceed 400 in the calendar year 2020 or even thereafter as a rule. The number of employees normally employed by the defendant would thus be well below the threshold of 500. The One-Third Participation Act was therefore no longer applicable to them.
The claimant, the defendant’s works council, opposed this in its application before the Munich Regional Court on the grounds that it could not be assumed that fewer than 500 employees were generally employed by the company. The future development of the company was currently completely uncertain and the personnel planning of the respondent was not comprehensible. It was not based on a comprehensible and realistic assessment of the actual factual situation. In fact, there was a shortage of personnel. The Regional Court dismissed the application. The claimant filed an appeal against this, which was not upheld by the Regional Court.

2. Decision of the BayObLG

The BayObLG agreed with the legal opinion of the Regional Court. The Court had recognized without error of law that the requirements of § 1 para. 1 no. 3 DrittelbG were not fulfilled. In order to determine the regular number of employees, not only the number of employees in the past but also the future development of the number of employees to be expected on the basis of specific company decisions is to be taken into account. The determination of the relevant company size therefore requires both a retrospective view and a forecast, in which concrete change decisions must be taken into account. As a general rule, forecasting decisions – based on the legal framework – must have a sufficiently sound factual basis.
The core of the claimant’s appeal was the objection that plans determining the defendant’s workload should have been set out by the defendant and taken into account in the forecast. The claimant’s argument that, according to general principles, the defendant bears the burden of proof for personnel planning, on the basis of which it can be assumed that the number of employees will permanently fall below 500, fails to take into account that the proceedings pursuant to § 99 AktG are so-called genuine dispute proceedings of voluntary jurisdiction (echtes Streitverfahren der freiwilligen Gerichtsbarkeit), but that as a result of the applicability of the FamFG (§ 99 para. 1 AktG), the court has a duty to conduct official investigations (§ 26 FamFG). The principles of the subjective burden of proof (Beweisführungslast) therefore do not apply, even if the parties have a certain duty to cooperate in the clarification of the facts (§ 27 FamFG). The court shall determine the scope of its investigations at its own discretion, taking into account the statutory elements of the facts and the particular circumstances of the individual case. The Regional Court did not violate this clarification obligation, since the claimant had not submitted sufficiently specific information as to why it was to be expected that the defendant would generally employ more than 500 employees in the future.

III. Assessment and consequences for the practice

The decision of the BayObLG confirms the previous case law according to which a reference period of 17-20 months in which the threshold of more than 500 employees was exceeded is to be used to assess whether the DrittelbG is applicable. This is to be welcomed, since if the reference periods were too short, there would be a risk of frequent structural changes in the supervisory board, which in turn could result in a considerable restriction of its performance as a control body. The court’s comments on the distribution of the burden of proof and the scope of the court’s principle of official investigation (Amtsermittlungsgrundsatz) are also convincing. The legislator deliberately assigned the judicial proceedings on the composition of the supervisory board to the proceedings of voluntary jurisdiction aiming at objective correctness (principle of official investigation!), as this corresponds much better to the specific nature of the dispute existing here than the proceedings under the Code of Civil Procedure. Nevertheless, the court’s duty to investigate must not get out of hand, but can only apply insofar as the claimant makes specific submissions.
The decision strengthens the position of companies in this respect, as any claimants must present concrete evidence that the company will employ more than 500 employees in the future and may not rely on the fact that the company’s forecast is not sufficiently sustainable. Nevertheless, companies should keep a close eye on the relevant thresholds. Even if the relevant threshold is currently still not reached, there may be a right to establish a supervisory board with co-determination if there are concrete indications that the threshold will be exceeded in the future. In a group (i.e. an association of at least two legally independent companies), the employees of the individual group companies are attributed to the group’s top management under the DrittelbG if a control agreement exists, unlike under the MitbestG, where a majority shareholding is required. Therefore, the above-mentioned threshold of 500 employees may be exceeded in individual cases even if the company at the top of the group does not exceed it itself.