# No Individual Email Entitlement for Works Council Members > The BAG clarifies that only the works council as a body may claim a personalised email address under § 40(2) BetrVG. Source: https://www.mtrlegal.com/en/no-individual-email-entitlement-for-works-council-members/ · Language: en · Updated: 2026-11-04 --- The Bundesarbeitsgericht (BAG, Federal Labour Court) has rejected an individual works council member’s claim to the creation of a personalised email address ([BAG, decision of 25 June 2026](https://www.bundesarbeitsgericht.de/entscheidung/7-abr-27-25/) – 7 ABR 27/25 (case no.)). According to the decision, the entitlement to the necessary resources under [§ 40(2) Betriebsverfassungsgesetz (BetrVG, Works Constitution Act)](https://www.gesetze-im-internet.de/betrvg/__40.html) is vested solely in the [works council as a body](https://www.mtrlegal.com/wiki/betriebsrat/). An individual member cannot derive from this any independent claim against the employer that exists separately from the works council as a body. ## Dispute over a personalised email address ### Shared access for the works council The employer involved in the proceedings operates several hundred supermarkets throughout Germany. Several works council districts exist on the basis of a collective bargaining agreement concluded with a trade union pursuant to § 3(1) no. 1(b) BetrVG. The applicant, who was ultimately the sole remaining applicant, is a member of the works council for works council district 5. Under the domain “n-online.de”, the employer provided the works council with an email address that its members could access. Certain individuals, including works council members released from their regular duties, received personalised email addresses. Some of these were configured to allow communication with addresses outside the employer’s domain. The applicant did not have such personalised access. After the employer failed to comply with his request to set one up, he initiated [works council adjudication proceedings](https://www.mtrlegal.com/wiki/beschlussverfahren/) without a prior works council resolution. ### Applicant relied on an individual entitlement The applicant sought a personal email address that would allow him to send messages to and receive messages from external addresses. In his view, he was directly entitled to this as an individual works council member. In particular, he advanced the following arguments: - The entitlement to resources under works constitution law was not limited to the works council as a body. - A prior works council resolution was unnecessary in view of the need to protect minority interests. - A personalised email address was necessary, in particular, to communicate confidentially and appropriately with employees. The employer applied for dismissal of the application. It took the view that any entitlement could at most be vested in the works council as a body, but not in an individual member. The Arbeitsgericht Celle (Celle Labour Court) dismissed the application. By contrast, the Landesarbeitsgericht Niedersachsen (Lower Saxony Higher Labour Court) allowed the applicant’s appeal and still considered the personal email address necessary (LAG Niedersachsen, decision of 25 April 2025 – 17 TaBV 62/24 (case no.)). The Bundesarbeitsgericht did not uphold this assessment in the appeal on points of law. ## Employer’s appeal on points of law successful The Bundesarbeitsgericht set aside the decision of the Landesarbeitsgericht to the extent that it had allowed the applicant’s appeal. To the extent that the decision was set aside, the appeal against the decision at first instance was dismissed. In the Bundesarbeitsgericht’s view, the application was admissible but unfounded on the merits. The approach adopted by the Landesarbeitsgericht has therefore been superseded in relation to the claim decided in this case. ### Application sufficiently specific The relief sought had to be interpreted as meaning that the applicant was asserting exclusively an individual entitlement to resources derived directly from his status as a works council member. Neither an entitlement of the works council as a body nor a right derived from a corresponding works council resolution formed part of the proceedings. For the application to be sufficiently specific, it was not necessary to stipulate individual technical measures for setting up the email address. Had the application been successful, the employer would have been able to decide for itself by which technical means it would provide a personalised address that could also be used outside its domain. ### Legal interest in bringing proceedings despite the absence of a works council resolution The legal interest in bringing proceedings was not absent merely because the works council had not previously considered the request. The applicant was specifically relying on an alleged individual entitlement that existed independently of the works council as a body. Whether such an entitlement actually existed was therefore not a question of admissibility but of the merits. The Bundesarbeitsgericht rejected its existence only when examining the substance of the case. ## Works council did not have to be joined to the proceedings Under § 83(3) Arbeitsgerichtsgesetz (ArbGG, Labour Courts Act), those persons and bodies whose legal status under works constitution, staff representation or co-determination law is directly affected by the decision sought must be heard. The decisive issue is who may hold rights or obligations under substantive law. On the basis of these criteria, the works council was not a necessary party to the proceedings. The applicant did not derive his request from a resolution of the works council as a body but asserted an independent individual right. Any potential conflict between an individual entitlement and an entitlement of the works council would only have affected the works council as a body if the works council itself had requested the relevant resources. Such a possible indirect effect was not sufficient to require its participation. Nor would a decision on whether the resource requested by the applicant was necessary have prejudged any subsequent claim by the works council. The discretion afforded to an individual and that afforded to the works council as a body would have had to be distinguished from one another. ## Entitlement to resources is vested in the works council as a body ### No personal entitlement under § 40(2) BetrVG Under § 40(2) BetrVG, the employer must provide the works council, to the extent necessary, with premises, material resources, information and communication technology, and support staff for meetings, consultation hours and the ongoing conduct of its business. According to the decision, this provision grants an entitlement exclusively to the works council as a body. It does not confer on an individual works council member any entitlement to resources, either directly or independently of the works council as a body. The Bundesarbeitsgericht based this conclusion on the wording, legislative history, statutory context, and spirit and purpose of the provision. ### Heading and legislative history support entitlement of the works council Although the wording of § 40(2) BetrVG expressly identifies only the employer as the party subject to the obligation, the official heading “Costs and material expenses of the works council” (translated in substance) indicates that the works council is the holder of the entitlement. The development of the provision also confirms the collective nature of the entitlement. Even the predecessor provisions placed the necessary work equipment in direct connection with the duties of the works council. According to the decision, there is no indication that independent entitlements for individual members were also intended to be created. This basic concept was retained when the Betriebsverfassungsgesetz was revised in 1972. The 2001 reform expanded the provision, in particular, to include information and communication technology. Here too, the reference to the works council as a body remained unchanged. ## Necessity is assessed by the works council ### Discretion of the works council as a body Under § 40 BetrVG, the employer is required to bear only those expenses and provide only those resources that are necessary for the performance of the works council’s duties. The works council may therefore impose on the employer only expenditure that it may reasonably consider appropriate in the circumstances. The costs incurred must be limited to what is necessary. In making this assessment, the works council has its own discretion. The decisive factor is the ability of the works council as a whole to function effectively. The provision of means of communication therefore requires coordinated planning and consideration within the works council. Although providing individual members with equipment may form part of an overall package of resources approved by the works council, this does not give an individual member an independent right to demand additional resources from the employer. ### Costs incurred by individual members must be assessed differently Within the scope of § 40(1) BetrVG, costs incurred by individual works council members in performing their duties may also be reimbursable. Such an entitlement is generally based either on a works council resolution or on the performance of a duty assigned directly to the member by law. As examples, the decision cites costs resulting from training approved by the works council or from instructing a lawyer. Necessary travel or childcare costs associated with the performance of statutory duties may likewise be covered. In these cases too, the individual member must limit the expense to what is necessary. According to the Bundesarbeitsgericht, these principles cannot be applied to the procurement of resources under § 40(2) BetrVG. While § 40(1) BetrVG concerns the payment of costs already incurred, § 40(2) BetrVG requires the employer to provide the resources covered by the provision itself. ### Narrowly limited exception in cases of conflicting interests In earlier decisions, the Bundesarbeitsgericht recognised an exception for situations in which the interests of a works council member are clearly in fundamental conflict with the interests of the works council as a body. This may be the case, for example, where a member must defend themselves against removal proceedings pursued by the works council and a supporting resolution by the works council cannot be expected from the outset. The dispute over the personalised email address was not comparable to such a situation. Even a majority decision rejecting such email access would merely constitute a difference of opinion within the works council regarding the resources required. In such a situation, the interests of the works council as a body and those of the individual member are not typically opposed. Disputes concerning resources must therefore be resolved within the works council in accordance with the applicable voting rules. ## No parallel entitlements for individual members According to the decision, granting each works council member their own discretion could result in divergent requirements. The employer could then be confronted simultaneously with differing or contradictory requests for resources from the works council as a body and from individual members. This would be incompatible with the works council’s structure, which is designed to facilitate coordinated decision-making. Disputes between the works council as a body and individual members concerning the nature and extent of the resources required must not be conducted indirectly through the employer. The broader statutory scheme of the Betriebsverfassungsgesetz also supports this distinction. The Act distinguishes between the works council as a collegial body and its members. Where individual members have independent entitlements, these are generally expressly provided for. The provisions governing the costs of works council elections and conciliation committees do not lead to a different conclusion. In those contexts too, the obligation to bear costs depends on the performance of statutory duties and the criterion of necessity. They do not establish any general individual right to resources. ## Protection of minority interests does not establish an individual entitlement ### Majority principle remains decisive The purpose of § 40(2) BetrVG is to ensure that the works council is functionally capable of acting. To this end, the employer must provide the necessary material and personnel infrastructure. The assessment of which resources are necessary concerns the works council as a whole and is therefore a matter for the works council. An additional individual entitlement for individual members is incompatible with this structure. According to the decision, reliance on the protection of minority interests does not lead to a different conclusion. As a rule, the works council adopts its decisions by majority resolution pursuant to § 33(1), sentence 1 BetrVG. Special minority rights exist only where the law expressly provides for them. § 40(2) BetrVG contains no such provision. An individual right of enforcement could also undermine the statutory majority principle. Individual members could then pursue their own, potentially conflicting requests for resources against the employer, irrespective of the resolutions adopted by the works council. In the specific proceedings, the applicant had also failed to submit that he had even attempted to obtain a corresponding works council resolution. For that reason alone, his request could not be justified on the basis that the majority had in fact withheld resources from him. ### No analogous application of the provision The Bundesarbeitsgericht also rejected the analogous application of § 40(2) BetrVG in favour of individual works council members. Such an application would require an unintended gap in the legislation. According to the interpretation of the provision, no such gap exists. The legislature deliberately vested the entitlement in the works council as a body. Nor did § 40(1) BetrVG provide a basis for setting up the email address requested. The applicant was not seeking reimbursement of costs already incurred but the provision of a specific resource. ## Significance for workplace practice The decision distinguishes the rights of the works council as a body from the powers of its individual members. Whether a personalised email address or other information and communication technology is necessary must generally be assessed by the works council as part of its collective decision-making process. The decision does not preclude the works council from considering it necessary to provide individual members with personal access and asserting a corresponding claim against the employer. However, it rejects an original entitlement of an individual works council member that exists independently of the works council as a body. Questions concerning the allocation of costs, technical resources and internal decision-making within a works council can have significant implications for workplace cooperation. MTR Legal Rechtsanwälte advises companies and other parties on the legal assessment of such matters as part of its [employment law advisory services](https://www.mtrlegal.com/rechtsberatung/arbeitsrecht/).