Mitbestimmungsverhandlungen trotz Leitungsentscheidung gemäß § 23 Abs. 1 S. 1 Nr. 3 MgVG

In cross-border mergers into Germany, the management is often induced to forego negotiations on employee participation at an early stage by way of the “management decision” in favour of the statutory standard rules. This effect contradicts the legislative ideal of negotiated employee participation. Practitioners see the solution in negotiations despite a management decision. The author shows that it is possible to conclude an employee participation agreement even after a management decision until the earlier of (i) the target company’s registration, and (ii) the expiry of the negotiation period. In doing so, he identifies, inter alia, a sensible procedure for practice and refutes an abuse of rights.