Opinion of the Advocate General — ECLI:EU:C:2023:962
Date: 2023-12-07
Language of the case: German
Subject matter: General provisions;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-706/22 – 1 
Case C-706/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
17 November 2022 
Referring court: 
Bundesarbeitsgericht (Federal Labour Court) (Germany) 
Date of the decision to refer: 
17 May 2022 
Applicant, appellant and appellant on a point of law: 
Konzernbetriebsrat der O SE & Co. KG 
Intervener: 
Vorstand der O Holding SE (Holding SE) 
  
Subject matter of the main proceedings 
Employee involvement in a Societas Europaea (SE) – Negotiation procedure – 
Possibility of retrospective conduct thereof 
Subject matter and legal basis of the request  
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is Article 12(2) of Regulation (EC) No 2157/2001, in conjunction with 
Articles 3 to 7 of Directive 2001/86/EC, to be interpreted as meaning that, 
where a holding SE is formed by participating companies which do not 
employ employees, and do not have subsidiaries employing employees, and 
the holding SE was registered in the register of a Member State (a so-called 
‘SE without employees’) without a negotiation procedure for the 
involvement of employees in the SE having first been conducted, under that 
EN 
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directive that negotiation procedure has to be conducted retrospectively if 
the SE becomes the controlling undertaking of subsidiaries in several 
Member States of the European Union which employ employees? 
2. If the Court’s answer to Question 1 is in the affirmative: 
Is the retrospective conduct of the negotiation procedure in such a case 
possible and necessary for an unlimited time? 
3. If the Court’s answer to Question 2 is in the affirmative: 
Does Article 6 of Directive 2001/86/EC preclude the application of the law 
of the Member State where the SE now has its registered office for the 
purpose of retrospective conduct of the negotiation procedure if the ‘SE 
without employees’ was registered in the register in another Member State 
without such a procedure having first been conducted and before the transfer 
of its registered office became the controlling company of subsidiaries in 
several Member States of the European Union which employ employees? 
4. If the Court’s answer to Question 3 is in the affirmative: 
Is this also the case where the State where that ‘SE without employees’ was 
first registered has withdrawn from the European Union after the transfer of 
the registered office and its law no longer contains any provisions on the 
conduct of a negotiation procedure for the involvement of employees in the 
SE? 
Provisions of European Union law relied on 
Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a 
European company (SE) (OJ 2001 L 294, p. 1) in the version in force from 1 July 
2013: Articles 1(8), 8(1), (10) and (16), and 12(1) and (2) 
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a 
European company with regard to the involvement of employees (OJ 2001 L 294, 
p. 22): Articles 2, 3(1), 4 to 7, and 11 
Directive 2009/38/EC of the European Parliament and of the Council of 6 May 
2009 on the establishment of a European Works Council or a procedure in 
Community-scale undertakings and Community-scale groups of undertakings for 
the purposes of informing and consulting employees (OJ 2009 L 122, p. 28) in the 
version in force from 9 October 2015: Articles 3(2) and 17 
Provisions of national law relied on 
Gesetz über die Beteiligung der Arbeitnehmer in einer Europäischen Gesellschaft 
(Law on the involvement of employees in a European company) (Law on 
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involvement in SEs; ‘the SEBG’) of 22 December 2004 (BGBl. I p. 3675, 3686) 
in the version currently in force: Paragraphs 3, 4, 16, 18, 22, and 43 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties disagree as to whether a negotiation procedure for the involvement of 
employees in the Societas Europaea (SE) is to be commenced and whether the 
associated information is to be provided. 
2 The applicant is the group works council formed at O SE & Co. 
Kommanditgesellschaft (O KG). The intervener at 2 is the management board of 
O Holding SE (Holding SE). 
3 Holding SE was formed at the beginning of 2013 pursuant to Article 2(2) of 
Regulation No 2157/2001 by O Limited (Ltd.) and O Gesellschaft mit 
beschränkter Haftung (GmbH) and was registered in the register for England and 
Wales on 28 March 2013. The companies involved in the formation employed no 
employees and had no subsidiaries within the meaning of Article 2(c) of Directive 
2001/86/EC at which employees were employed. Therefore, no negotiations on 
employee involvement were held pursuant to Article 3 to 7 of the above directive 
prior to the registration of Holding SE in the register. 
4 As of 29 March 2013, Holding SE was the sole shareholder of O Holding GmbH. 
O Holding GmbH had its registered office in Hamburg and had a supervisory 
board, one third of which consisted of employee representatives. On 14 June 
2013, Holding SE decided to convert O Holding GmbH (a public limited 
company) into a limited partnership – O KG. As a result of the change in legal 
form, which was registered in the register on 2 September 2013, the involvement 
of the employees on the supervisory board came to an end. 
5 Furthermore, Holding SE was and is a limited partner of O KG within the 
meaning of Paragraph 161(1) of the Handelsgesetzbuch (Commercial Code) (‘the 
HGB’). O KG has around 816 employees. It has subsidiaries in several Member 
States of the European Union which employ a total of around 2 200 employees. A 
limited partner of O KG within the meaning of Paragraph 161(1) of the HGB was 
and is O Management SE (Management SE), whose sole shareholder in turn is 
Holding SE. Management SE, which has its registered office in Hamburg, has a 
board of directors (unitary system). However, Management SE, like Holding SE, 
employs no employees of its own.  
6 With effect from 4 October 2017, Holding SE moved its registered office to 
Hamburg. 
7 In the decision-making procedure initiated by the applicant group works council 
of O KG, it took the view that the management of Holding SE is obliged to 
commence a procedure for the formation of a special negotiating body. Since 
Holding SE had subsidiaries within the meaning of Article 2(c) of Directive 
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2001/86 in several Member States which employ employees, the negotiations on 
the involvement of employees – which in principle are to be conducted prior to the 
registration of an SE – had to be conducted retrospectively. 
8 In the view of the management board of Holding SE, there is no obligation to 
conduct such negotiations retrospectively. 
9 The lower courts dismissed the applications. 
Need for a decision of the Court of Justice 
10 The decision in the decision-making procedure turns on whether Article 12(2) of 
Regulation (EC) No 2157/2001, in conjunction with Articles 3 to 7 of Directive 
2001/86, is to be interpreted as meaning that under that directive, where a holding 
SE is formed by participating companies which like their subsidiaries employ no 
employees (a so-called ‘SE without employees’) and was registered in the register 
of a Member State without a negotiation procedure for the involvement of 
employees in the SE having first been conducted, requires that that negotiation 
procedure be conducted retrospectively if the SE becomes a controlling 
undertaking of subsidiaries in several Member States of the European Union 
which employ employees. 
11 By its applications, the group works council is seeking to have a negotiation 
procedure pursuant to Article 3(1) of Directive 2001/86 commenced 
retrospectively. It claims that the management should request that the employee 
representatives or – where no employee representatives exist in a particular case – 
the employees of its subsidiaries in the Member States of the European Union 
form a special negotiating body. It should also provide the information necessary 
to conduct the negotiation procedure. 
12 In the view of the chamber concerned, that request is to be examined on the basis 
of the SEBG, that is to say the law of the Member State in which the SE holding 
company currently has its registered office should be taken as a basis. 
13 Under the first sentence of Paragraph 3(1) of the SEBG, the scope thereof is open. 
The provisions of that law apply both to an SE which is formed with its registered 
office in Germany and an SE which initially had its registered office in another 
(former) Member State of the European Union which subsequently transfers its 
registered office to Germany – as in the main proceedings. Following its 
formation, Holding SE had its registered office initially in Britain. However, the 
registered office was transferred to Hamburg. Pursuant to Article 8(10) of 
Regulation No 2157/2001, the transfer of the registered office took effect on the 
date on which it was registered, in accordance with Article 12, in the register for 
its new registered office. The registration in the commercial register was effected 
on 4 October 2017. Since that date, the SEBG has been applicable to Holding SE. 
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14 In the view of the referring court, nothing to the contrary follows from Article 6 of 
Directive 2001/86. Under that provision, except where otherwise provided in the 
directive, the legislation applicable to the negotiation procedure provided for in 
Articles 3 to 5 thereof is to be the legislation of the Member State in which ‘the 
registered office of the SE is to be situated’. However, in the view of the chamber 
concerned, that provision is based on the idea that the negotiation procedure for 
the involvement of employees in the SE must always be conducted as part of its 
formation and prior to its registration. This is demonstrated by Article 3(1) and (2) 
of Directive 2001/86. Under that article, the management or administrative organs 
of the participating companies drawing up a plan for the establishment of an SE 
must, inter alia, take the necessary steps to start negotiations with the 
representatives of the companies’ employees on arrangements for the involvement 
of employees in the SE as soon as possible after publishing the draft terms of 
creating a holding company. For this purpose, a special negotiating body 
representative of the employees of the participating companies and concerned 
subsidiaries or establishments is to be created. Subparagraph (b) of the second 
paragraph of Article 7(1) of Directive 2001/86 also makes this clear. Under that 
provision, the application of the standard rules as laid down by the legislation of 
the Member State in which the registered office of the SE is to be situated turns, 
inter alia, on whether the competent organ of each of the participating companies 
decides to accept that ‘and so to continue with its registration of the SE’. This 
interpretation of Article 6 of Directive 2001/86 is confirmed by the provisions of 
Regulation No 2157/2001. It is clear from recital 19 and Article 1(4) of the 
regulation that Directive 2001/86 forms an indissociable complement to the 
regulation. Under Article 16(1) of Regulation No 2157/2001, an SE is not to 
acquire legal personality until it is registered in the register. However, under 
Article 12(2) of Regulation No 2157/2001 registration may not be effected unless 
an agreement on arrangements for employee involvement pursuant to Article 4 of 
Directive 2001/86/EC has been concluded, the special negotiating body has taken 
a decision pursuant to Article 3(6) of the directive, or the period for negotiations 
pursuant to Article 5 of the directive has expired without an agreement having 
been concluded. 
15 Nor is anything different to be concluded from Article 8(16) of Regulation 
No 2157/2001, which provides for a fiction of the registered office being in the 
exit State. That rule does not cover the conduct of a negotiation procedure for the 
involvement of employees in the SE. Under Article 1(4) of Regulation 
No 2157/2001, the negotiation procedure is to be governed by the provisions of 
Directive 2001/86. 
16 The provisions of the SEBG do not contain an explicit legal basis for the group 
works council’s request for commencement of a negotiation procedure for the 
involvement of employees following the formation and registration of Holding 
SE. 
17 Paragraph 4 of the SEBG does not cover the case of the retrospective conduct of 
such a procedure. Paragraphs 4 to 17 and Paragraphs 19 and 20 of the SEBG 
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govern only the formation, composition and selection of the special negotiating 
body and the negotiation procedure for the planned formation of an SE. 
18 Nor is Paragraph 18 of the SEBG directly applicable in the present case. 
19 Under Paragraph 18(1) and (2) of the SEBG, after the formation of an SE and 
under certain conditions, the employees or their representatives may decide to re-
establish a special negotiating body and resume negotiations with the management 
of the SE. That provision requires that a special negotiating body must have had 
already been established at the time of the formation of the SE which, under 
Paragraph 16(1) of the SEBG, decided not to open or to terminate negotiations. 
Those requirements are not met in this case since no negotiations were 
commenced at the time Holding SE was formed. 
20 Paragraph 18(3) of the SEBG is likewise not applicable. Under that provision, 
negotiations on employees’ rights to be involved take place at the instigation of 
the management of the SE or the SE works council if structural changes to the SE 
are planned which could reduce employees’ rights to be involved. That 
requirement is not fulfilled in the main proceedings. In the case of Holding SE no 
structural changes were planned – since the application of German law as of 
4 October 2017 – which could have reduced employees’ rights to be involved. 
Furthermore, that provision also governs only the ‘resumption’ of negotiations. It 
requires that negotiations on employee involvement must have already taken place 
when the SE was founded. 
21 However, the chamber concerned considers that the rules on the formation, 
composition and selection of the special negotiating body and the negotiation 
procedure laid down in Paragraphs 4 to 17 and Paragraphs 19 and 20 of the SEBG 
could be applied by analogy to Holding SE. The crucial factor here is that it was 
registered in the register as a holding SE ‘without employees’ without a negotiated 
procedure for the involvement of employees in the SE having first been conducted 
and subsequently became the controlling company of subsidiaries in several 
Member States of the European Union which employ employees. 
22 Holding SE was ‘without employees’ when it was registered in the register of 
England and Wales on 28 March 2013. Neither did the two companies involved in 
the formation – O Ltd. and O GmbH – employ employees, nor did they have 
subsidiaries which employed employees. Thus, at that time there were no 
employees or employee representatives who could have formed a special 
negotiating body. 
23 For this reason, Holding SE was registered in the register even though the 
registration requirements under Article 12(2) of Regulation No 2157/2001 had not 
been met. The requirements therein are intended to safeguard the negotiated 
procedure for employee involvement provided for in Directive 2001/86. Since that 
procedure cannot be conducted where an SE ‘without employees’ is formed, the 
objective of the registration requirements cannot be attained in such a case. 
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Therefore, according to case-law and academic writings Article 12(2) of 
Regulation No 2157/2001 must be interpreted strictly in that regard and even 
though the requirements set out therein are not satisfied, registration must be 
effected. The registration of such an SE ‘without employees’ is customary 
throughout the European Union. 
24 Holding SE still does not employ employees itself. However, since 29 March 
2013 it has had subsidiaries which do employ employees. 
25 By acquiring all the shares in O Holding GmbH, Holding SE gained controlling 
influence over that company and its subsidiaries, established in Member States of 
the European Union, within the meaning of the European Public Limited-Liability 
Company (Employee Involvement) (Great Britain) Regulations 2009 (Regulations 
2009 No 2401), which were applicable before its registered office was transferred 
to Germany. As sole shareholder, Holding SE was able to appoint the 
management of O Holding and thus its board of directors. In addition, Holding SE 
thus indirectly had controlling influence over its subsidiaries established in 
Member States of the European Union. 
26 The change in the legal form of O Holding GmbH to a limited partnership and the 
transfer of the registered office of Holding SE to Germany changed nothing in this 
regard. O KG was and is represented by its limited partner – Management SE 
established in Germany – and not by Holding SE. However, as the sole 
shareholder of Management SE, Holding SE could and can appoint its board of 
directors. The board of directors appoints the managing directors. As a result, 
Holding SE also has controlling influence over O KG and its subsidiaries 
established in Member States of the European Union. 
27 In such circumstances, it would be possible under national law to apply 
Paragraph 4 et seq. of the SEBG on the formation, composition and selection of 
the special negotiating body and the negotiation procedure by analogy to Holding 
SE. 
28 In German law, a provision can be applied by analogy if the act concerned 
contains an unintended gap in the law, the unintended nature of which can be 
established positively on the basis of specific circumstances. The gap must result 
from the fact that the legislature unintentionally deviates from the purpose 
underlying the act. In addition, in accordance with the principle of equality and to 
avoid contradictory assessments a case not governed by law must demand the 
same legal consequence as the cases covered directly by the wording of the law. 
29 Whether or not those requirements are fulfilled turns on the interpretation of EU 
law. 
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Explanation of the questions submitted for a preliminary ruling 
30 Firstly, in the view of the chamber concerned, the SEBG would contain an 
unintended gap in the law if Article 12(2) of Regulation No 2157/2001, in 
conjunction with Articles 3 to 7 of Directive 2001/86, were to be interpreted as 
meaning that the negotiation procedure for the involvement of employees in an SE 
which has not been carried out beforehand had to be conducted retrospectively in 
the case of the formation and registration in the register of a holding SE ‘without 
employees’ if the SE subsequently became the controlling undertaking of 
subsidiaries in several Member States of the European Union which employ 
employees. 
31 The SEBG does not lay down an obligation to conduct the procedure 
retrospectively. Nor are the standard rules laid down in Paragraph 22 et seq. of the 
SEBG applicable. Under Paragraph 22(1) of the SEBG – the content of which 
corresponds to Article 7(1) of Directive 2001/86 – the involvement of employees 
governed by that provision requires that the parties so agree or that no agreement 
has been concluded by the deadline laid down in Paragraph 20 and that the special 
negotiating body has not taken the decision provided for in Paragraph 16. The 
standard rules laid down in Paragraph 22 et seq. of the SEBG therefore only apply 
if – as provided for in Paragraph 4 et seq. of the SEBG – a special negotiating 
body has been established. This reflects the concept underlying Directive 2001/86 
whereby employee participation is primarily to be agreed by negotiation. 
32 However, in the view of the chamber concerned, that gap in the law would only be 
unintentional if EU law were to require an obligation to conduct negotiations 
retrospectively in a case such as that in the main proceedings. By the SEBG, the 
German legislature merely sought to implement the requirements of Directive 
2001/86. If an obligation to conduct the negotiations retrospectively were to arise 
from EU law, the legislature would have unintentionally deviated from that 
underlying purpose. National law could then be developed in conformity with EU 
law. 
33 Articles 3 to 7 of Directive 2001/86 do not expressly stipulate that the negotiation 
procedure on the involvement of employees in a holding SE is to be conducted 
retrospectively after its formation where an SE ‘without employees’ at the time it 
is registered subsequently becomes the controlling undertaking of companies in 
several Member States of the European Union which employ employees. 
However, in the view of the referring court, this merely reflects that fact both the 
directive and Regulation No 2157/2001, in accordance with the concept 
underlying them, assume that the commencement of a negotiation procedure on 
the involvement of employees in the SE is possible when the SE has been founded 
and before it has been registered. In this regard, the chamber concerned considers 
that the EU legislature assumed that the companies involved in the formation 
within the meaning of Article 2(b) of the directive, or at least the subsidiaries 
concerned within the meaning of Article 2(c) thereof, are economically active and 
thus employ employees. This is demonstrated by recitals 1 and 2 of Regulation 
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No 2157/2001. According to those recitals, that regulation seeks to enable the 
reorganisation of companies whose ‘business’ is not limited to satisfying purely 
local needs. It seeks to give ‘existing companies … the option of combining their 
potential’. Recital 10 of Regulation No 2157/2001 also refers to companies 
‘carrying on economic activities’. Accordingly, Article 12(2) of Regulation 
No 2157/2001 expressly provides that an SE may not be registered and thus 
legally formed unless an agreement on arrangements for employee involvement 
has been concluded, the special negotiating body has taken a decision not to open 
negotiations or to terminate negotiations already opened, or the period for 
negotiations beginning with the formation of the special negotiating body has 
expired without an agreement having been concluded. If, contrary to those 
requirements, a holding SE ‘without employees’ is registered, the purpose of 
Articles 3 to 7 of Directive 2001/86 might require that the negotiations on 
employee involvement be conducted retrospectively if the holding SE becomes 
the controlling company of subsidiaries in several Member States of the European 
Union which employ employees. 
34 In the case of the main proceedings, such an obligation to conduct negotiations 
retrospectively could at least be required in the light of Article 11 of Directive 
2001/86. It requires that, where registration of the holding SE and acquisition of 
the subsidiaries take place at such a close point in time, it be assumed that the 
formation is being misused for the purpose of depriving employees of rights to 
employee involvement or withholding such rights. 
35 If the Court’s answer the first question were in the affirmative, the second 
question would arise as to whether the retrospective conduct of the negotiation 
procedure in such a case is possible and necessary for an unlimited time. In the 
view of the chamber concerned, such an obligation on the SE would not, 
depending on the case, be subject to a time limit. It would not cease to exist 
merely with the passage of time. The fact that the number of employees employed 
in a holding SE and its subsidiaries may change over time should not mean that a 
(possible) obligation to conduct a negotiated procedure retrospectively does not 
apply. 
36 Thirdly, if the Court answered the second question in the affirmative, it would be 
necessary to clarify whether – as assumed by the chamber concerned – the 
retrospective conduct of the negotiation procedure is to be determined by the law 
of the Member State in which the holding SE now has its registered office if – as 
in the case in the main proceedings – it was registered in the register of another 
Member State without such a procedure having been conducted first and, before 
the transfer of its registered office, became the controlling company of 
subsidiaries in several Member States of the European Union which employ 
employees. Therefore, the interpretation to be given to Article 6 of Directive 
2001/86/EC is decisive. 
37 Fourthly, if the Court concludes that the retrospective conduct of the negotiation 
procedure in a case such as that in the main proceedings is not determined by the 
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law of the Member State in which the SE currently has its registered office, but by 
the law of the State in which that SE ‘without employees’ was first registered, the 
question arises as to whether this is also the case where that State withdrew from 
the European Union after the transfer of the SE’s registered office and its law 
contains no provisions on the conduct of a negotiation procedure on the 
involvement of employees in the SE. Directive 2001/86 was implemented in 
Britain by the Regulations 2009 No 2401. However, with the expiry of 
31 December 2020, all SEs registered in the United Kingdom were converted into 
‘UK Societas’ and the rules on the negotiation procedure for involvement of 
employees in the SE were repealed.