BGH on One-Third Employee Representation in Joint Operations
The Bundesgerichtshof (BGH, Federal Court of Justice), by order of 23 June 2026 – II ZB 11/25 – held that employees of several companies are not to be mutually taken into account for the threshold under § 1 Abs. 1 Nr. 1 Satz 1 DrittelbG (German One-Third Participation Act) merely because those companies operate a joint operation. According to the decision, the decisive factor remains whether the statutory requirements for attribution under the One-Third Participation Act are met.
The order concerns the question of whether a supervisory board must be established at a stock corporation under the One-Third Participation Act. The BGH made the decision public together with a parallel case in a press release on 31 July 2026.
Background to the Proceedings
Applicants and Companies Involved
The subject of the proceedings was a group of companies whose ultimate parent company was the respondent. The applicants were works councils of several companies in this group. According to publicly available reports, the anonymized parties were connected to the Berlin-based neobank N26; the works councils sought to achieve one-third employee representation on the supervisory board of N26 SE and N26 Bank SE.
The respondent employed around 290 employees. Its subsidiaries included N. B. SE with around 80 employees and N. P. GmbH with around 400 employees. A subsidiary of N. B. SE was N. O. GmbH, which also employed around 400 employees.
Different corporate-law links existed between the companies:
- Between the respondent and N. B. SE there was a domination agreement within the meaning of § 291 Abs. 1 Satz 1 Fall 1 AktG (German Stock Corporation Act).
- The respondent was linked to N. P. GmbH by a profit transfer agreement under § 291 Abs. 1 Satz 1 Fall 2 AktG.
- A profit transfer agreement also existed between N. B. SE and N. O. GmbH.
Course of the Proceedings before the BGH
The lower courts were the Landgericht Berlin II (Berlin II Regional Court) by order of 18 December 2024 – 102 O 23/24 – and the Kammergericht (Berlin Higher Regional Court) by order of 17 June 2025 – 14 W 2/25. The works councils’ applications for declaratory relief were unsuccessful in all three instances.
The Kammergericht had expressly admitted the appeal on points of law only on the question of whether employees of a joint operation are to be mutually attributed when determining the threshold under § 1 Abs. 1 DrittelbG. A key consideration of the lower courts was also that, in the absence of an agreement on employee participation, the companies had remained free of co-determination even after the formation of the SE, because no obligation to provide one-third participation had previously existed.
Even before the BGH’s decision, it had been publicly reported that works councils of three companies of the digital bank had appealed to the Federal Court of Justice after two unsuccessful lower-court instances.
Decision of the Federal Court of Justice
No Attribution Merely Because of a Joint Operation
The BGH held that the employees of N. P. GmbH and N. O. GmbH were not to be attributed to the respondent on the basis of any possible joint operation. For the threshold of, as a rule, more than 500 employees under § 1 Abs. 1 Nr. 1 Satz 1 DrittelbG, the existence of a joint operation of several companies is therefore not sufficient.
According to the court’s guiding principle, employees are not to be mutually attributed for the purpose of reaching this threshold merely because there is a joint operation of several companies. The BGH thus clarifies that the works-constitution-law concept of a joint operation cannot simply be transferred to corporate co-determination under the One-Third Participation Act.
Wording and Regulatory Concept of the One-Third Participation Act
The BGH initially based its decision on the wording of § 1 Abs. 1 DrittelbG. The provision refers to the number of employees of the stock corporation. In the court’s view, this argues against mutual attribution solely on the basis of a joint operation.
For the BGH, this was reinforced by the legislative context. The attribution of employees is structured differently in the One-Third Participation Act and in the Betriebsverfassungsgesetz (BetrVG, German Works Constitution Act), depending on the regulatory purpose. The One-Third Participation Act is intended to ensure that, in companies above a certain number of employees, employees participate through the supervisory board in key company-related decisions.
§ 2 Abs. 2 DrittelbG takes this objective into account. The provision provides for the attribution of employees from other companies only under certain conditions. According to the BGH’s decision, additional attribution solely on the basis of a joint operation would circumvent this statutory limitation.
Distinction from Works Constitution Law
The joint operation is expressly regulated in the Works Constitution Act. § 1 Abs. 1 Satz 2 BetrVG concerns the establishment of a works council in a joint operation of several companies. According to the BGH’s decision, the One-Third Participation Act contains no corresponding reference.
At the level of works constitution law, this does not affect the fact that a single works council is established for the joint operation. It also remains the case that, for works-constitution-law thresholds, for example under §§ 9, 38 BetrVG, all employees of the joint operation generally count regardless of their respective contractual employer. According to assessments in the specialist literature, the decision also does not affect the case law of the Bundesarbeitsgericht (BAG, Federal Labour Court) on the active right to vote.
Significance of the Threshold under § 1 Abs. 1 DrittelbG
More Than 500 Employees as the Reference Point
For stock corporations, § 1 Abs. 1 Nr. 1 DrittelbG is linked to whether they generally employ more than 500 employees. If this threshold is reached and the further statutory requirements are met, employees have a co-determination right under the One-Third Participation Act.
In the case decided, according to the BGH’s decision, this threshold was not reached. Attribution was possible only with regard to the employees of N. B. SE, because the requirements of § 2 Abs. 2 DrittelbG were met in this respect on the basis of the domination agreement. However, this attribution was not sufficient to exceed the threshold of more than 500 employees.
The employees of N. P. GmbH and N. O. GmbH were not included beyond this. According to the decision, the profit transfer agreement alone and any possible joint operation did not lead to attribution relevant to the threshold.
Management Control as the Decisive Attribution Criterion
According to the decision, for the attribution of employees under § 1 Abs. 1 DrittelbG, the decisive factor is the management control of the controlling company, to the extent that this is conveyed under corporate law within the meaning of § 2 Abs. 2 DrittelbG. This may occur in particular through a domination agreement or through integration.
The order thus confirms a restrictive line that had already been taken in lower-court case law in recent years. For group structures with joint operations, the decision provides a clarifying statement on the disputed question of corporate co-determination under the One-Third Participation Act.
Parallel Proceedings II ZB 12/25
In parallel, the BGH, by order of 23 June 2026 – II ZB 12/25 – decided another case arising from the same group context. There, the application was directed against N. B. SE and was brought solely by the works councils of N. O. GmbH.
This parallel proceeding also concerned the question of one-third employee representation on the supervisory board. The BGH made both orders public on 31 July 2026 with Press Release No. 139/2026. The applications for declaratory relief were unsuccessful in this respect as well.
Classification for Companies with Joint Operations
The decision concerns the interface between works constitution law and corporate co-determination. It makes clear that a joint operation within the meaning of § 1 Abs. 1 Satz 2 BetrVG does not automatically mean that employees of different companies must be aggregated for the thresholds of the One-Third Participation Act.
Rather, for corporate co-determination under the One-Third Participation Act, the statutory attribution provisions are decisive. § 2 Abs. 2 DrittelbG is the central provision for taking into account employees of dependent companies. The mere cooperation of several companies in a joint operation does not replace these requirements.
In practical terms, the significance of the order lies above all in group structures in which companies are closely linked in operational terms but have different corporate-law affiliations. Here, the BGH distinguishes the works-constitution-law perspective from the calculation of thresholds under co-determination law pursuant to the One-Third Participation Act.
Frequently Asked Questions
BGH II ZB 11/25 Joint Operation DrittelbG: Attribute Employees?
According to the BGH’s order of 23 June 2026, a joint operation of several companies does not mean that employees are to be mutually attributed for the threshold under § 1 Abs. 1 DrittelbG. Attribution is governed by the requirements of the One-Third Participation Act.
§ 1 Abs. 1 DrittelbG Threshold of More Than 500 Employees in a Group?
For stock corporations, § 1 Abs. 1 Nr. 1 DrittelbG refers to generally more than 500 employees. Employees of other companies are taken into account only if a statutory attribution provision applies, in particular under § 2 Abs. 2 DrittelbG.
What Practical Consequences Does the BGH Order on Joint Operations Have for Companies?
For group structures with joint operations, the decision provides clarity on the question that a joint operation alone does not trigger attribution relevant to the threshold under the One-Third Participation Act. Works-constitution-law rules on counting employees must be distinguished from this.
Legal Advice on One-Third Employee Representation and Stock Corporation Law
The BGH’s decision shows that the distinction between works-constitution-law structures, group links, and co-determination under stock corporation law can be of considerable importance. MTR Legal Rechtsanwälte advises companies, investors, and high-net-worth private individuals on questions relating to corporate body structures, corporate co-determination, and stock corporation law requirements. Further information can be found at Legal advice in stock corporation law.
