Case Law and the Literature

Abstract

The Regional Court (LG) of Hamburg97 saw a damaging breach of duty on the works council’s part in the fact that it adopted the employees’ demand to fire a particular employee due to his political and trade union attitudes98. The Regional Court of Berlin99 found works council members liable under Section 826 BGB100 and ordered them to pay the employer compensation because they first suggested that the works council fire certain employees, but then denied the justification of these terminations during the proceeding on the objection to the termination (Kundigungseinspruchsprozeβ). However, the Regional Court of Altona101 took a fundamentally different stand. It found against the liability of works council members toward the employees, on the grounds that — as is the case with members of parliament — it is inconceivable that the works council members could be held liable under civil law for insufficiently safeguarding the interests of a voter102. In 1925, the Supreme Court of the German Reich (Reichsgericht) 103 ’ first deliberated a liability for members of the labor council (Arbeiterrat) pursuant to Section 826 BGB because they had walked out on May Day together with the rest of the workforce. In 1927, the same court104 ruled that members of the plant’s representtative bodies calling for walkouts could be liable for damages pursuant to Section 823 (1) BGB “due to unlawful disturbance of the established and functioning commercial operation”.