Trade unions have no digital access right to the company – German Federal Labour Court sets limits to institutional freedom of association

In its decision of 28 January 2025 (see press release), the German Federal Labour Court (Bundesarbeitsgericht, “BAG”) clarified that an employer is not obliged to provide a trade union with the work e-mail addresses of its employees for the purpose of recruiting members. The BAG thus sets clear limits to the freedom of association guaranteed by Art. 9 (3) of the German Constitution (Grundgesetz, “GG”) and restricts the employer's obligations in this context to mere acts of tolerance.

1. Factual situation

The defendant runs a company with several thousand employees and is part of a global group. According to a shop agreement in force at the company, employees can work around 40% of their individual working hours on a mobile basis or from home. The majority of internal company communication takes place via the company e-mail addresses, the Viva Engage application developed by Microsoft 365 and the group-wide intranet.

The plaintiff trade union was of the opinion that it should be granted "access" to the aforementioned communication systems for the purpose of recruiting members. The defendant was therefore obliged, among other things, to provide it with all of the employees' company e-mail addresses. At the very least, it had a right to send employees up to 104 e-mails per year with a size of up to 5 MB. Furthermore, it should be granted access to the group-wide network at Viva Engage as an "internal user" so that it could post a certain number of articles promoting the trade union there. In addition, the defendant should provide a link to the plaintiff's website on the homepage of its intranet.

2. Decision of the Regional Labour Court of Nuremberg

The Regional Labour Court (Landesarbeitsgericht, “LAG”) of Nuremberg dismissed the trade union's action in its ruling of 26 September 2023 (7 Sa 344/22).

The court essentially argued that the demand for access to all company communication tools constituted data processing and that there was no permissible legal basis for this. Furthermore, the employees had not consented to their e-mail addresses being passed on to the trade union and the employer was also under no obligation to obtain such consent without cause.

With regard to the obligation to set up an internal company e-mail address, the court drew a comparison with the analogue world, in which the trade union also has no right to distribute information material via the internal mailroom. Rather, it can produce promotional or information brochures itself using its own material and personnel resources and distribute these to the employees in the company using its access right pursuant to Section 2 (2) of the German Shop Constitution Act (Betriebsvereinbarungsgesetz, “BetrVG”). This does not require recourse to the employer's resources. The trade union also has no claim to placement of a link to the union's website on the defendant's intranet. In particular, there is no unintended loophole in the BetrVG in this respect, which thus excludes recourse to Section 9 (2) of the Federal Employee Representation Act (Bundespersonalvertretungsgesetz, “BPersVG”), according to which a link to the trade union’s website must be provided on the intranet.

3. Confirmation by the BAG

The BAG has fundamentally confirmed the decision of the LAG Nuremberg. According to the press release, the BAG, having weighed up the conflicting constitutional rights of the parties and in the absence of a statutory provision, deemed the mere transmission of company e-mail addresses not suitable as a form of practicing the freedom of association. Nor was the employer obliged to disclose the company e-mail addresses and to tolerate their use, as this would significantly impair the constitutionally guaranteed freedom of economic activity. Here, the BAG referred the plaintiff trade union to the analogue route: for example, it could ask the employees for their company e-mail address on site at the company.

The trade union also had no right to use the group-wide network at Viva Engage. The BAG found that the associated adverse effects on the employer outweighed the protected interests of the plaintiff in the implementation of such promotional measures.

The action to have a link placed on the defendant's intranet was also unfounded. In the absence of an unintended loophole in the BetrVG, the plaintiff could not base its request on an analogous application of Section 9 (3) sentence 2 BPersVG. However, the senate left open the question of whether such a request can arise in principle from Article 9 (3) GG. In all events, the plaintiff cannot demand that a link referring to its website be placed on the homepage of the intranet.

4. Conclusion

Against the backdrop of the digital age and ever-increasing digitisation, the BAG's decision is of the highest practical relevance and provides legal certainty with regard to a highly controversial legal issue.

However, the reasons for the decision are eagerly awaited. With regard to the placement of a link to the trade union's website, the press release shows that the BAG only decided that such a link does not have to be placed on the intranet‘s homepage. The BAG expressly left open whether or not a claim can be derived from Article 9 (3) GG, according to which a link has to be placed elsewhere on the intranet.

With this judgement, the BAG has also already pointed out constitutional limits with regard to a possible statutory regulation. For example, the draft bill of the Act to Strengthen Collective Bargaining Autonomy by Ensuring Compliance with Collective Bargaining Agreements in the Awarding of Public Contracts by the Federal Government and Further Measures ("Collective Bargaining Compliance Act") (“Tariftreuegesetz”), which was published on 5 September 2024, provided for the codification of a digital access right for trade unions (see our article of 11 October 2025). Such access right has ultimately not been pursued further by the current federal government, however. It remains to be seen whether a second attempt will be made by the new federal government to be elected in February.

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