Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Germany (Ratification: 1956)

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021, which mainly relate to matters examined by the Committee under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Articles 4 and 6 of the Convention. Right to collective bargaining with respect to conditions of employment of public servants not engaged in the administration of the State. The Committee recalls that it has been requesting, for a number of years, the adoption of measures to ensure that public servants who are not engaged in the administration of the State, enjoy the right to collective bargaining. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, while the prohibition of collective bargaining deriving from article 33(5) of the Basic Law is linked to the civil servant status and applies to all civil servants irrespective of their duties, article 11(2) of the European Convention on Human Rights (ECHR) provides that restrictions to freedom of association could only be justified by the relevant function of the civil servant; and that, in the case of civil servants not exercising sovereign authority of the State, for instance teachers in public schools, there is a collision, which needs to be solved by the federal legislator. According to the Federal Administrative Court, in view of the collision between article 33(5) of the Basic Law and article 11 of the ECHR, the federal legislator needed to considerably broaden, in public service domains that were not characterized by the exercise of genuinely sovereign authority, the participation rights of trade unions of civil servants towards a negotiation model.

In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. It also requested the Government once again to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service.

The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12) the Federal Constitutional Court held that: (i) the universal freedom of association derived from article 9(3) of the Basic Law does not contain exclusions for specific professions and therefore applies unconditionally not only to public sector workers but also to civil servants; (ii) this does not mean, however, that any restrictions to freedom of association are automatically excluded, as even fundamental rights may be restricted as a result of conflicting third-party rights and other rights with constitutional status; (iii) the traditional principle of the career civil service system guaranteed by article 33(5) of the Basic Law amounts to one such restriction with constitutional status; (iv) the ban on the involvement of civil servants in collective bargaining is closely linked to the duty of loyalty, the principle of lifetime employment and the civil service principle of alimentation (Alimentationsprinzip), which requires employers to provide civil servants and their families with reasonable lifetime remuneration and a standard of living corresponding to their seniority, the level of responsibility associated with their office and the relevance of the career civil service to the general public, in line with economic and financial growth in general; (v) the entirely objective guarantee of a reasonable standard of living under article 33(5) of the Basic Law establishes an individual right each civil servant holds vis-à-vis the State, equivalent to a fundamental right, to have the constitutionality of their alimentation reviewed in court; and (vi) the ban on civil servants taking part in collective bargaining thus follows from the traditional principle of the career civil service system but the individual right nevertheless enables those affected to uphold their constitutional status (including in court) and to enforce the obligation of the employer to provide reasonable remuneration. The Government adds that proceedings are currently ongoing before the European Court of Human Rights relating to the strike ban for civil servants examined by the Committee under Convention No. 87.

The Committee notes the observations of the DGB in this respect, pointing to the 2018 decision of the Federal Constitutional Court and asserting that the principle of alimentation applicable to the individual civil servant creates a direct right to be paid commensurate with their position and having to enforce this claim in court in case of infringement is not compatible with this principle, especially considering that proceedings before administrative courts are so protracted that it is not reasonable to expect the person affected to take legal action.

The Committee takes due note of the 2018 ruling of the Federal Constitutional Court. The Committee observes that it results in a ban on the involvement of all civil servants in collective bargaining. The Committee regrets that public servants not engaged in the administration of the State are thus deprived of the right to bargain collectively granted to them by the Convention. The Committee recalls in this regard that it has been highlighting for many years that, pursuant to Articles 4 and 6 of the Convention, all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights. It also emphasizes that while the determination of wages is an important element of the scope of collective bargaining, other terms and conditions of work and employment also fall within its scope. In view of the above, the Committee encourages the Government to continue engaging in a comprehensive national dialogue with representative organizations in the public service with a view to exploring innovative solutions and possible ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State, including for instance, as previously indicated by the BDA, by differentiating between areas of genuinely sovereign domains and areas where the unilateral regulatory power of the employer could be restricted to extend the participation of representative organizations in the public service. Further noting that proceedings are currently ongoing before the European Court of Human Rights in relation to the ban on the right to strike of civil servants and observing that it may also have repercussions on the right of civil servants to bargain collectively, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.