• Providing a company vehicle to works council members in Germany for private use constitutes prohibited preferential treatment within the meaning of Section 78 sentence 2 BetrVG if it is granted solely by reason of their office.
• If the company vehicle is subsequently withdrawn from the works council member, the member cannot claim compensation for the loss of private use, as the underlying vehicle use agreement is void from inception under Section 134 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)) due to the violation of the prohibition against preferential treatment.

The plaintiff is employed by the defendant as a store manager and has been, as a works council member, on garden leave for several years.

In 2016, the employer introduced a social counseling program and exclusively offered works council members the opportunity to undergo training as social counselors on a voluntary basis and to perform social counseling duties afterwards. The employee completed this training and subsequently worked as a social counselor. The employer then provided the employee with a company vehicle that she was also permitted to use for private purposes pursuant to a vehicle use agreement. Under the employer’s company vehicle policy, store managers are not entitled to a company vehicle for private use. In 2024, the employer outsourced its social counseling program and demanded the return of the company vehicle from the employee. The employee complied with this demand. However,...

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