According to Sec. 79 German Works Constitution Act (Betriebsverfassungsgesetz), the works council has a duty of confidentiality in respect of all business secrets. However, information about a staff reduction and the related balance of interests cannot per se be regarded as a business secret in the context of this statutory duty of confidentiality. This is only the case if the employer has an objective economical legitimate interest in the secrecy. This was decided by the Higher Labour Court (Landesarbeitsgericht) Schleswig-Holstein on 20 May 2015 (docket number: 3 TaBN 35/14).
When there is no such objective interest, the duty on the works council cannot be activated by the employer by simply declaring the information to be a business secret, even in cases where this information might result in staff-related action such as a dismissal. Also, the works council does not have to wait to reveal or use the information until negotiations with the employer are terminated. Quite the contrary, the works council may communicate with its voters (the workforce) about the concrete planned operational change from the beginning, especially if the employees are affected.
According to this judgment, even the employer’s global interests such as preventing a competitive enterprise from learning about the operational changes or the interest in preventing impairment of the operating ability of the business are not sufficient reasons for requiring the works council to remain silent.