The law concerning the election of employees’ representatives in company bodies

This paper assesses the juridical aspects of the right to vote for, and be elected as, employee representative in company bodies. The assessment is made in the light of the pending case Konrad Erzberger v TUI AG, C 566/15 before the Court of Justice of the European Union (CJEU). The case was referred to the CJEU by the Kammergericht Berlin (Germany) and it was lodged on 3 November 2015. In the case, two issues related to the provisions of the Treaty of Functioning of the European Union (TFEU) are addressed to the CJEU. One is if it is discrimination on grounds of nationality, another is if national legislation is incompatible with the provisions on freedom of movement for workers, when the national legislation does not permit inviting employees outside a country’s borders to vote or stand as a candidate for the employee representation in that company’s supervisory body. In this paper it is argued that national law in the case at issue is not incompatible with European Union (EU) law. Consequently, there is no discrimination on grounds of nationality, and there is no obstacle to free movement for workers. Instead, it is a matter of what law shall apply.