Outmanoeuvring Transnational Employment Relations in the European Company via the European Court of Justice—A Final Victory?— Konzernbetriebsrat (C-706/22)

This case note analyses the ECJ’s Konzernbetriebsrat ruling of 24 May 2024 as an example of strategic litigation challenging German legislation on Board Level Employee Representation (BLER, also “co-determination”), which in principle supports using a shell-SE without employees to avoid BLER for companies with employees merging with that shell-SE. That reasoning must be read in context with the Court’s case law on easing corporate mobility under freedom of establishment. The note criticises the judgment’s narrow interpretation of Directive 2001/86 as being out of line with its usual dynamic interpretation. As the second ECJ ruling on co-determination in the SE, Konzernbetriebsrat does not constitute established case law, though. The note also highlights opportunities created by this very judgment in the realm of bolstering national rules combating misuse of registering an SE. Finally, it also outlines further perspectives for creating safe havens for transnational models of employee co-determination in European companies.