mm: Mr. Greiner, there has been a debate about appropriate payment for works councils in companies for years. Now he has Federal Court of Justice the acquittals for four former VW managers were overturned and it was found that a board member or authorized officer can be prosecuted for breach of trust if they pay an excessive wage to a works council. Is there finally clarity with the judgment of the BGH?
Stefan Greiner: It is now clear that the Federal Court of Justice has drawn the penal limits much narrower than was previously expected. In labor law, the matter was already quite clear: according to the Works Constitution Act, work on the works council is an honorary post, but at the same time works councils may not be disadvantaged or favored because of their work.
However, these specifications are quite vague and open up a wide scope for interpretation.
The ban on discrimination was already effective because affected works councils took legal action before the labor court in the event of a dispute. However, favoritism has not been a history of complaints, and some hiring managers have believed that there are no criminal penalties for overpaying employee representatives. This has fundamentally changed as a result of the judgment of the BGH, and the world has been different for companies since then: HR managers are now threatened with criminal proceedings for breach of trust if they favor their exempted works councils.
The VW case was negotiated. Why is the judgment still of particular importance for all Dax companies?
When it comes to co-determination, companies are in a real dilemma. It is clear that works councils take on very responsible and important tasks. These require negotiating skills, communication skills and economic expertise. In particular, long-standing works council members, who also sit on the supervisory boards of corporations, often take on the tasks of a “co-manager”: It is hardly possible to take these tasks into account in the remuneration due to the principle of honorary office. Many companies are therefore in a quandary and tend to push the limits of paying their voluntary works council members quite a bit – sometimes beyond the limits of what is legally acceptable. This is not Volkswagen-Phenomenon. This is widespread in the world of corporate co-determination.
Does that mean in concrete terms that all companies now have to fear criminal prosecution?
I can only advise all companies to take a close look at the remuneration models for their works councils now – and to adapt them to what is legally permissible as quickly as possible. This is the only way they can avert criminal liability for their acting managers in the future.