{"id":9848,"date":"2025-10-23T11:05:51","date_gmt":"2025-10-23T09:05:51","guid":{"rendered":"https:\/\/smart-arbeitsrecht.de\/?p=9848"},"modified":"2026-01-20T09:59:49","modified_gmt":"2026-01-20T08:59:49","slug":"aktives-und-passives-wahlrecht-bei-der-betriebsratswahl-2026-wer-gehoert-auf-die-waehlerliste","status":"publish","type":"post","link":"https:\/\/smart-arbeitsrecht.de\/en\/aktives-und-passives-wahlrecht-bei-der-betriebsratswahl-2026-wer-gehoert-auf-die-waehlerliste\/","title":{"rendered":"Active and passive voting rights in the 2026 works council elections \u2013 who should be on the electoral roll?"},"content":{"rendered":"
\n
\"\"
If you have any questions about this topic, please contact me by phone at 040 524 717 830<\/a> or by email to lugowski@smart-arbeitsrecht.de<\/a><\/figcaption><\/figure><\/div>\n\n\n

The next works council elections will take place nationwide in spring 2026. However, before employees can cast their votes, the electoral board must compile the correct electoral roll. This raises the key question: Who is eligible to vote (active voting right) \u2013 and who is allowed to stand for election (passive voting right)?<\/p>\n\n\n\n

A legally compliant election can only be guaranteed if the electoral roll is compiled in accordance with the law. Errors in the roll can lead to challenges and subsequently invalidate the election. As an electoral board, you bear a special responsibility in this regard.<\/p>\n\n\n\n

In this article, we explain who is eligible to vote and stand for election, which legal criteria must be met, and what you as an election committee should pay attention to when compiling the electoral roll for the 2026 works council election.<\/p>\n\n\n\n


<\/p>\n\n\n\n

\n

What awaits you:<\/h2>\n
    \n
  1. Online Works Council Election 2026: The current status \u2013 what has happened so far\n<\/a><\/li>\n
  2. New federal government \u2013 new opportunities for online works council elections?\n<\/a><\/li>\n
  3. Conclusion: No law yet \u2013 but digital co-determination is gaining momentum\n<\/a><\/li>\n
  4. The passive right to vote \u2013 who is eligible to stand for election to the works council?\n<\/a><\/li>\n
  5. Special case in the works council election: Who counts as a senior employee?\n<\/a><\/li>\n
  6. Conclusion: Clarifying the status before the works council election \u2013 for greater legal certainty\n<\/a><\/li>\n<\/a><\/li>\n
  7. FAQs \u2013 Frequently Asked Questions\n<\/a><\/li>\n<\/ol>\n<\/div>\n\n\n\n

    Of central importance: The electoral roll for the works council election<\/h2>\n\n\n\n

    The voters' list is a crucial document in every works council election. It informs who is eligible to vote (active voting right) and who is eligible to stand as a candidate (passive voting right). As the election committee, you are obligated to publish a complete and accurate voters' list in the company along with the election announcement.<\/p>\n\n\n\n

    The electoral roll contains all eligible employees in the company. Only those on this roll may participate in the election. At the same time, all employees have the right to check whether their registration has been correct. Therefore, the electoral roll must be displayed for inspection in an accessible location in the company until voting is complete.<\/p>\n\n\n\n

    According to Section 2, Paragraph 2 of the Election Regulations (WO), the employer is legally obligated to provide the election committee with all necessary information and documents to correctly compile the electoral roll. As the election committee, you should specifically request the employer to provide you with the necessary information \u2013 ideally in writing and with specific details.<\/p>\n\n\n\n

    Errors in the electoral roll are one of the most common causes of challenges to works council elections. Our labor law experts will review your documents and guide you through every step \u2013 ensuring a legally compliant and contestable election. Request a free consultation now \u2013 so your electoral roll is legally sound!<\/p>\n\n\n\n

    Mistakes on the voter list? You can appeal!<\/h2>\n\n\n\n

    The electoral roll forms the basis for the works council election, so its accuracy and timeliness are crucial. But what happens if an error is discovered?<\/p>\n\n\n\n

    Every employee has the right to lodge an objection to the electoral roll with the electoral board within two weeks of the election announcement being issued. If the objection is deemed justified, the roll must be corrected or supplemented accordingly.<\/p>\n\n\n\n

    After the two-week deadline has expired, no further changes are possible on the basis of objections \u2013 the electoral board must reject late objections.<\/p>\n\n\n\n

    Between the time the voter list is drawn up and election day, personnel changes may occur within the company\u2014for example, through hiring, terminations, or transfers. Therefore, the electoral board is obligated to continuously update the list to ensure that all eligible voters are correctly recorded\u2014and no one is unfairly excluded.<\/p>\n\n\n\n

    An incorrect or outdated voter list can jeopardize the entire works council election. Have your voter list legally reviewed by our employment law firm \u2013 and protect yourself against legal challenges. Request legal support now \u2013 we will reliably guide you through the entire election process.<\/p>\n\n\n\n

    The active right to vote in works council elections \u2013 who is allowed to vote?<\/h2>\n\n\n\n

    A key question arises in the context of the 2026 works council elections: Who is eligible to vote? The so-called active right to vote regulates who is entitled to cast their vote in the election. The legal basis for this can be found in Section 7, Sentence 1 of the Works Constitution Act (BetrVG). Accordingly, only persons who meet all three requirements are entitled to vote:<\/p>\n\n\n\n

      \n
    • Employee status
      All persons who are considered employees within the meaning of the law are entitled to vote \u2013 regardless of whether they are employed full-time, part-time, on a temporary basis, on a marginal basis or at home. \n
        \n
      • Employees eligible to vote include:\n
          \n
        • Apprentices, provided they are at least 16 years old<\/li>\n\n\n\n
        • Mini-jobbers<\/li>\n\n\n\n
        • Part-time and temporary workers<\/li>\n\n\n\n
        • Employees on parental leave, sick leave or vacation<\/li>\n\n\n\n
        • Employees in active partial retirement<\/li>\n\n\n\n
        • Working students and volunteers<\/li>\n\n\n\n
        • Field service and teleworkers<\/li>\n\n\n\n
        • Temporary workers, provided they are employed in the company for more than three months<\/li>\n\n\n\n
        • ABM workers (since BAG decision 2004, 7 ABR 6\/04)<\/li>\n\n\n\n
        • Public service employees assigned to the company<\/li>\n<\/ul>\n<\/li>\n\n\n\n
        • However, the following are not eligible to vote:\n
            \n
          • Executive employees (Section 5 (3) BetrVG)<\/li>\n\n\n\n
          • Employers, managing directors, board members<\/li>\n\n\n\n
          • Self-employed and freelancers<\/li>\n\n\n\n
          • 1-euro jobbers<\/li>\n\n\n\n
          • Employees under 16 years of age<\/li>\n\n\n\n
          • Employees in the passive phase of partial retirement<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n\n\n\n
          • Length of service\n
              \n
            • Only those who belong to the specific company are entitled to vote \u2013 not all employees of the company or group.<\/li>\n\n\n\n
            • Dependent business units participate in the election of the main business.<\/li>\n\n\n\n
            • Independent company divisions can elect their own works council under certain conditions.<\/li>\n\n\n\n
            • The distinction is often complex \u2013 we would be happy to advise you on this as part of our employment law election support.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
            • Minimum age\n
                \n
              • Any employee who is at least 16 years old on election day may vote. <\/li>\n\n\n\n
              • The decisive factor is the day of voting, not the start of the election process. In elections lasting several days, the last day of voting counts.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n

                Eligible voters must be carefully verified and documented. An inaccurate voter list can lead to a challenge to the election. Our employment law firm supports election boards in compiling legally compliant voter lists \u2013 nationwide and with decades of experience in employment law. Have your voter list reviewed now \u2013 for a legally compliant and uncontestable 2026 works council election!<\/p>\n\n\n\n

                The passive right to vote \u2013 who is eligible to stand for election to the works council?<\/h2>\n\n\n\n

                Not everyone eligible to vote can also run for the works council. The so-called passive right to vote is regulated in Section 8 of the Works Constitution Act (BetrVG) and determines who is considered an eligible employee in the 2026 works council election.<\/p>\n\n\n\n

                  \n
                • Eligible to vote are those who:\n
                    \n
                  • is eligible to vote (see Section 7 of the Works Constitution Act),<\/li>\n\n\n\n
                  • has reached the age of 18 and<\/li>\n\n\n\n
                  • has been part of the company for at least six months without interruption.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
                  • Crucial moment: election day\n
                      \n
                    • The six-month period is determined by the day of voting. For elections lasting several days, the last day of voting applies. <\/li>\n\n\n\n
                    • If an employee was previously employed in another company within the same company or group, these periods will be taken into account.<\/li>\n\n\n\n
                    • Note: Periods of service before the age of 18 also count. For example, anyone who turns 18 on election day and has already been working for the company for a year is eligible to run.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
                    • Who is eligible to vote?
                      In addition to traditional employees, these include:\n
                        \n
                      • Trainees, provided they work in a \u201creal\u201d company<\/li>\n\n\n\n
                      • Part-time workers<\/li>\n\n\n\n
                      • Homeworkers if they work predominantly for the company<\/li>\n\n\n\n
                      • Employees on maternity or parental leave<\/li>\n<\/ul>\n<\/li>\n\n\n\n
                      • Who is excluded from the right to vote?\n
                          \n
                        • Temporary workers are generally not eligible to vote \u2013 neither so-called real nor fake ones. <\/li>\n\n\n\n
                        • The Federal Labor Court (BAG, 13.10.2004 \u2013 7 ABR 6\/04) made this clear. <\/li>\n\n\n\n
                        • Even if temporary agency workers are allowed to vote, they cannot be elected to the works council of the hiring company.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n

                          Correctly verifying the right to stand for election is crucial for a non-contestable election. Our employment law firm reliably reviews your candidate lists nationwide and with years of experience in works council elections. Have your candidates reviewed now \u2013 get a legally secure start to the 2026 works council elections.<\/p>\n\n\n\n

                          Special case in the works council election: Who counts as a senior employee?<\/strong><\/h2>\n\n\n\n

                          When compiling the electoral roll for the 2026 works council elections, the correct classification of executive employees presents a particular challenge. While Section 5, Paragraphs 3 and 4 of the Works Constitution Act (BetrVG) provides legal criteria, there is no clear definition. In practice, the electoral board must carefully examine whether a person qualifies as a executive employee\u2014because this group of employees is neither eligible to vote nor to be elected.<\/p>\n\n\n\n

                            \n
                          • What distinguishes senior managers?
                            Senior managers assume entrepreneurial-like tasks within the company with their own decision-making power \u2013 for example, by:\n
                              \n
                            • Hiring and firing of employees<\/li>\n\n\n\n
                            • Granting or use of power of attorney<\/li>\n\n\n\n
                            • Responsibility for key personnel or budget decisions<\/li>\n\n\n\n
                            • Due to their special status, they are closer to the employer than to the rest of the workforce. Therefore, they are excluded from works council elections.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
                            • Impact on the electoral roll and eligibility to vote
                              Senior managers will:\n
                                \n
                              • not registered on the electoral roll,<\/li>\n\n\n\n
                              • not taken into account when calculating the size of the works council (Section 9 of the Works Constitution Act) and<\/li>\n\n\n\n
                              • not counted in the number of works council members to be released (Section 38 of the Works Constitution Act).<\/li>\n\n\n\n
                              • Please note: The election is not automatically invalidated if a senior employee votes by mistake \u2013 a challenge can only be successful if there is evidence of influence on the election result.<\/li>\n<\/ul>\n<\/li>\n\n\n\n
                              • Alternative representation of interests: the Speakers\u2019 Committee\n
                                  \n
                                • Senior employees are not without rights \u2013 they elect their own representative body, the Speakers\u2019 Committee. <\/li>\n\n\n\n
                                • This is usually elected at the same time as the works council election. <\/li>\n\n\n\n
                                • To avoid overlaps, close coordination between the electoral boards of both bodies is necessary. <\/li>\n\n\n\n
                                • In case of doubt, who belongs to the group of senior employees must be clarified jointly \u2013 on the basis of Section 18a of the Works Constitution Act.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n

                                  The incorrect assignment of senior employees can make the election contestable. Our employment law firm supports you in legally compliant demarcation \u2013 with clear review criteria, legal classification, and practical experience. Have your voter list reviewed now \u2013 and legally clarify any uncertainties regarding senior employees!<\/p>\n\n\n\n

                                  Conclusion: Clarifying the status before the works council election \u2013 for greater legal certainty<\/strong><\/h2>\n\n\n\n

                                  In cases of doubt, it may be extremely sensible for reasons of legal certainty to have the status of individual employees determined by the labor court before the works council election \u2013 especially if the allocation procedure pursuant to Section 18a of the Works Constitution Act (BetrVG) is not effective or does not lead to a clear result.<\/p>\n\n\n\n

                                  A judicial determination of status, for example on the question of whether an employee is to be classified as a managerial employee within the meaning of works constitution law, provides binding clarity \u2013 and prevents later challenges or costly disputes that can burden not only the election but also other operational processes.<\/p>\n\n\n\n

                                  Clarify any doubts early on \u2013 we'll assist you with legally compliant status checks and, if necessary, represent you in labor court proceedings. Contact us now \u2013 for legally compliant works council elections without any surprises.<\/p>\n\n\n\n

                                  FAQs \u2013 Frequently asked questions about active and passive voting rights in company elections<\/strong><\/h2>\n\n\n\n\n
                                  \n
                                  \n \n
                                  \n \n
                                  \n \n
                                  \n
                                  \n
                                  \n \n
                                  \n
                                  \n
                                  \n Why is the electoral list so legally significant for the works council election? <\/i><\/span>\n <\/div>\n