Works council may exercise full co-determination rights for the time being despite foreign affiliation

The Berlin-Brandenburg Regional Labor Court has confirmed in an interim injunction that the works council of an airline elected at Berlin Brandenburg Airport (BER) may provisionally exercise its co-determination rights under works constitution law—despite the airline’s headquarters being located abroad and the unresolved final classification of the stationing location as an organizational unit eligible for a works council (Berlin-Brandenburg Regional Labor Court, April 15, 2026 – 23 TaBVGa 269/26).

Facts of the case

The decision of the Berlin-Brandenburg Regional Labor Court is based on the following facts: Malta Air, a subsidiary of Ryanair headquartered in Malta with its corporate headquarters in Ireland, operates flights within Europe under a Maltese air operator’s certificate and maintains a home base at BER for approximately 50 pilots and about 270 cabin crew members. Personnel, social, and disciplinary support for employees is primarily provided from Malta and Ireland via electronic communication. However, the positions of Base Captain (cockpit) and Base Supervisor (cabin) exist on-site at BER as local points of contact for authorities, airport operators and employees. In May 2025, a works council was elected at the BER site after the Berlin-Brandenburg Regional Labor Court had already classified the BER site in October 2024 as a legally independent division of the company and thus as an organizational unit eligible for a works council; the Federal Labor Court confirmed this classification on May 13, 2026 (Case No. 7 ABR 7/25). A collective bargaining agreement governing the duty schedules of pilots remained in effect until March 2026. At the end of February 2026, Malta Air announced—without involving the works council—a change to the duty rotation schedule effective April 2026 and, at the same time, transferred the roles of Base Captain and Base Supervisor to employees stationed abroad. The airline subsequently contested the international jurisdiction of German labor courts, the eligibility of the BER site for a works council, and the continued existence of the works council.

The petitioner in this proceeding is the local works council, which is seeking an order prohibiting the Malta-based airline from setting the pilots’ duty schedules for the second quarter of 2026 without its prior participation in the decision-making process.

Reasons for the decision

The Cottbus Labor Court and, on appeal, the Berlin-Brandenburg Regional Labor Court issued a preliminary injunction prohibiting Malta Air from setting the pilots’ duty schedules without the works council’s consent or without such consent having been replaced by the conciliation board. Both courts affirmed the international jurisdiction of the German labor courts over the co-determination proceedings at the BER stationing location. Despite the relocation of the functional responsibilities of the Base Captain and Base Supervisor abroad, the Regional Labor Court did not consider the organizational unit at BER eligible for a works council to have obviously ceased to exist, since the Base functions, in terms of their content, remain assigned to the BER stationing location. Another decisive factor was that the works council election had been conducted properly and had not been challenged within the statutory period for contesting the election. The court found no grounds for declaring the election null and void, which would require a particularly serious violation of fundamental electoral principles. Even if the Federal Labor Court were to later rule in another proceeding that the BER site does not qualify for a works council, the State Labor Court holds that this would merely constitute a misinterpretation of the definition of “workplace,” which would result in the election being subject to a time-limited challenge but not in its nullity. Consequently, the works council remains fully capable of acting until a final and binding decision to the contrary is issued and may exercise its co-determination rights, particularly with regard to scheduling. There is no right of appeal against the decision on interim relief.

Practical guidance

DThe ruling strengthens the co-determination rights of works councils at companies headquartered in other European countries that maintain organizationally established locations in Germany. For employers with international operations, the ruling demonstrates that attempts to circumvent works council eligibility or challenge the jurisdiction of German labor courts by relocating functions abroad have only limited legal prospects of success if an independent local organizational structure continues to exist, as a works council election that has been properly conducted and not challenged within the prescribed time limit confers a robust status on the council; mere doubts regarding the eligibility for a works council generally do not lead to nullity, but only to contestability. In practice, both companies and employee representatives should clarify at an early stage whether locations or home bases meet the criteria for a “workplace” or “part of a workplace” within the meaning of the Works Constitution Act (BetrVG), and establish corresponding co-determination structures in a legally sound manner.