Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Germany (Ratification: 1957)

The Committee notes the observations received on 1 September 2015 from the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA), which are of a general nature. The Committee notes the observations received on 1 September 2017 from the BDA, endorsed by the IOE, which relate to matters examined by the Committee below. The Committee also notes the Government’s reply to the 2014 observations of the International Trade Union Confederation (ITUC) and to the 2012 observations from the German Confederation of Trade Unions (DGB). In particular, the Committee notes with interest that, in relation to the 2012 DGB observations denouncing the lack of a general prohibition of the use in non-essential services of temporary workers as strike breakers, the Government indicates that national legislation has been amended to ensure that the receiver is no longer allowed to hire agency workers as strike breakers. According to section 11(5) of the Manpower Provision Act, in effect from 1 April 2017, the receiver shall not allow agency workers to work if the business is directly involved in a labour dispute.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State to have recourse to strike action. In its previous observation, the Committee had noted with interest a ruling handed down by the Federal Administrative Court on 27 February 2014 holding that, given that the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights in the case of civil servants (Beamte) who are not active in genuinely sovereign domains (hoheitliche Befugnisse), for instance teachers in public schools, and this collision should be solved by the federal legislator; and that, in the case of civil servants (Beamte) who exercise sovereign authority, there is no collision with the European Convention on Human Rights and thus no need for action. The Committee had further noted the Government’s indication in this regard that, for civil servants (Beamte) not exercising sovereign authority, the legislator must bring about a balancing of the mutually exclusive legal positions under Article 33(5) of the Basic Law and the European Convention on Human Rights; that, in the meantime, the constitutional strike ban for civil servants (Beamte) remained in force; and that, given that union representatives would refer the matter to the Federal Constitutional Court and that two proceedings on the same subject matter were already pending before it, legislative measures should not forestall the clarification and resolution of the issues by that Court. In light of the above, the Committee had requested the Government to refrain in the future from imposing disciplinary sanctions against any civil servants not exercising authority in the name of the State who participate in peaceful strikes; and to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring possible ways of bringing the legislation into conformity with the Convention. The Committee also requested the Government to provide information on any ruling handed down by the Federal Constitutional Court on the subject.

The Committee notes that the Government reiterates that: (i) under the German Constitution, the public service (öffentlicher Dienst) is linked with the institutional guarantee of a professional civil service (Berufsbeamtentum), which must be regulated taking into account the traditional principles of the professional civil service (hergebrachte grundsätze des berufsbeamtenum); (ii) one of those principles is the prohibition on civil servants from participating in industrial action, as the “right to strike” is incompatible with the relationship of service and loyalty, and conflicts with the structural decision that relationships governed by civil service law are regulated by the legislature; and (iii) the prohibition on strike action is compensated for by various rights and principles, such as the principle of a salary commensurate with the civil service position; the characterization of the subjective rights of Article 33(5) of the Basic Law as being equivalent to fundamental rights; and participation rights of the leading organizations of trade unions and employers’ associations in the legislative process and other corporate participation rights in the Lander. With regard to the 2014 judgement of the Federal Administrative Court, the Government states that, in its view, the case law of the European Court of Human Rights is not capable of altering these constitutional circumstances, since, despite a functional approach to exception clauses relating to sovereignty, the case law on Article 11 of the European Convention on Human Rights (ECHR) does not exclude the classification of teachers as “members of the administration of the State” within the meaning of the second sentence of Article 11(2). On the contrary, the Government believes that the prohibition on strike action of teachers who have civil servant status is compatible with Article 11(1), given that the interference is justified under Article 11(2) by the legitimate aim of guaranteeing the right to education. The Government adds that the relevant decisions of the Federal Administrative Court are currently the subject of proceedings before the Federal Constitutional Court.

The Committee notes that, according to the BDA: (i) the Federal Administrative Court, in its 2014 judgment, held that, on one side the general strike prohibition on civil servants applies as a conventional principle pursuant to Article 33(5) of the Basic Law and, on the other side, this prohibition of strikes for officials outside the genuinely sovereign domain is incompatible with the freedom of association of Article 11 of the ECHR; (ii) the Federal Administrative Court confirmed in its decision of 26 February 2015 that it is the task of the federal legislator to establish a balance between the incompatible requirements of Article 33(5) of the Basic Law and Article 11 of the ECHR; and that, as long as this has not been done, the public-law strike prohibition, continues to apply and is a disciplinary rule; (iii) the strike ban in Article 33(5) of the Basic Law constitutes an exception to the right to freedom of association guaranteed in Article 9(3) of the Basic Law; (iv) the legislator has different options to adopt a compliant legislation, for example, as a functional matter, by determining areas of genuinely sovereign domains for which a general strike ban should apply, and areas of public administration, where the unilateral regulatory power of the employer should be restricted to extend the participation of representative organizations in the public service; and (v) this issue will be further discussed at national level by the Government and the social partners. Generally, the BDA considers that: (i) as there is no existing legal regulation fully encompassing industrial action, the German employers advocate for a comprehensive regulatory approach, which would take into account the 1950s and 1960s jurisprudence, highlighting that strikes are socio-politically and economically highly undesirable and involve negative consequences for the German national economy, and that this holds especially true in times of growing internationalization and digitalization; (ii) in order to re-establish the balance between the social partners, the legislator must establish appropriate regulations correcting significantly the aberrations created by jurisprudence in past decades and establishing a numerus clausus of permissible means of industrial action (essentially lockout for employers and strikes for employees; any means of industrial action involving a “flash mob” must be illegitimate); and (iii) BDA opposes a right to strike for civil servants because they have duties of loyalty towards their employer (the State and the community) and because there would be great discontent in the general public if civil servants went on strike for a wage increase since their payment is indirectly financed by the community through taxes.

The Committee notes with concern that the more recent ruling of the Federal Administrative Court handed down on 26 February 2015 upholds the disciplinary action imposed on a teacher with civil servant status (Beamte) for having participated in industrial action. The Federal Administrative Court reiterates that the conflict between the general strike prohibition on civil servants who are not engaged in genuinely sovereign domains pursuant to Article 33(5) of the Basic Law and, on the other side, the right to freedom of association under Article 11 of the ECHR, can only be solved by the federal legislator and not by the tribunals. Noting that the Federal Constitutional Court will soon decide on the constitutional complaint raised following the Federal Administrative Court judgment of 27 February 2014, the Committee requests the Government to provide a copy of that decision, as soon as it is handed down, as well as any other pending decision to be issued by the Federal Constitutional Court on the subject. In view of the collision ascertained by the Federal Administrative Court between Article 33(5) of the Basic Law and Article 11 of the ECHR, and in light of the persisting need highlighted by the Committee for many years to bring the legislation into full conformity with the Convention with regard to the same aspect, the Committee once again requests the Government to: (i) refrain, pending the relevant decision of the Federal Constitutional Court, from imposing disciplinary sanctions against civil servants not exercising authority in the name of the State (such as teachers, postal workers and railway employees) who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation with the Convention.