No Digital Access Rights for Trade Union

Trade unions are not entitled to access and use electronic communication channels of companies for digital recruitment.

Federal Labor Court, Judgment of 28 January 2025 - 1 AZR 33/24

At the height of the Coronavirus pandemic in 2020, a union responsible for the employer's collective bargaining agreement demanded far-reaching access to the employer's internal communications network. The union sought to obtain the employer's internal e-mail addresses of all its employees for the purpose of recruiting and informing members, as well as access as an “internal user” to the employer's group-wide network in order to publish advertising posts there. In addition, it demanded that the employer link the union's website to the homepage of its intranet. 

No Right to receive Business e-mail Addresses

In its judgment, which is so far only available as a press release, the Federal Labor Court (Bundesarbeitsgericht – BAG) ruled that a trade union is not entitled to demand that the employer discloses the business e-mail addresses of its employees, even if a significant proportion of the employer's internal communications are electronic and the employees can work up to 40% of their working hours in their home office. In its decision, the court took into account the union's constitutionally protected freedom of association on the one hand, and the conflicting fundamental rights of the employer and employees on the other.

Union may use voluntarily provided e-mail Addresses

In its decision, the court referred to its previous case law that Article 9 (3) of the German Constitution grants trade unions the right to use company e-mail addresses of employees for advertising purposes and to provide them with information if the employees have voluntarily provided their e-mail addresses to the union. The union may address the employees in this traditional way in the company and request their company e-mail addresses. This represents the most careful balance for the employees' constitutionally guaranteed interests.

The previous instance (Nuremberg Higher Labor Court, judgment of 26 September 2023 – 7 Sa 344/22) had already pointed out that the employees did not work exclusively in their home office and were predominantly present at the company's premises. The court ruled that the requested access to the official e-mail addresses of all employees would not mean a transfer of the existing legal situation in the analog reality into the digital operating reality, but rather a significant improvement in its options for establishing contact while conserving its human resources compared to establishing contact and advertising on site. 

No use of the internal Network by Trade Union

The union can also not request the use of an internal network. According to the court, the associated interference with the employer exceeds the union's constitutionally protected interest in conducting such advertising measures.

No Right to link to the Union's website on the Intranet

Finally, the Federal Labor Court rejected the claim to link the union's website on the company's intranet. The union argued that Section 9 (3) sentence 2 of the Federal Employee Representation Act (Bundespersonalvertretungsgesetz, BPersVG) is applicable by analogy. According to this regulation, employers in the public sector must link to the union's website on their intranet if requested to do so. However, the Federal Labor Court did not follow this view and upheld the lower court, which argued that the regulation from the BPersVG is not to be transferred to the private sector.

Outlook

The Federal Labor Court has rejected a digital access right for the union. Originally, the Federal Ministry of Labor under Federal Labor Minister Heil had provided for a digital access right for the unions in its draft for the Collective Bargaining Agreement Loyalty Act (Tarifvertragstreuegesetz). However, this was already deleted in the draft passed by the federal cabinet of Chancellor Scholz. It therefore remains to be seen whether a digital access right will find advocates in the new governing coalition.