Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

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

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 many years the adoption of measures to recognize the right to strike of civil servants who are not exercising authority in the name of the State. In this respect, the Committee noted the 2018 decision of the Federal Constitutional Court (Case No. 2 BvR 1738/12), dismissing the complaints of teachers with civil servant status against disciplinary measures for having participated in strikes during working hours, and considering that these measures were not in violation of the freedom of association as guaranteed in article 9(3) of the Constitution. It noted that the Constitutional Court based its decisions on the interpretation of article 33(5) of the Constitution as justifying a prohibition of the right to strike for civil servants, emphasizing the traditional principles and specificities of the career civil service system (such as the payment of a salary commensurate with the civil service position, the duty of loyalty and lifetime employment). The Committee noted with regret that the Constitutional Court’s decision was not in keeping with the Convention, as it amounted to a general ban on the right to strike of civil servants based on their status, irrespective of their duties and responsibilities, and in particular a ban on the right of civil servants who are not exercising authority in the name of the State (such as teachers) to have recourse to strike action. The Committee also noted that proceedings on this matter had been brought before the European Court of Human Rights (ECtHR).

The Committee notes the Government’s indication, in response to its request regarding the outcome of these proceedings, that the ECtHR found that the prohibition of strikes by teachers with civil servant status is consistent with the European Convention on Human Rights, and that the disciplinary measures do not undermine freedom of association as provided for in article 11 of that Convention (see Humpert and others v. Germany, judgment of 14 December 2023 – 59433/18, 59477/18, 59481/18, 59494/18). The Government indicates that, in the ECtHR’s opinion, while the right to strike is an important instrument, it is not the only means by which trade unions and their members can protect their respective professional interests, and that it is therefore not absolute. The Government further states that the ECtHR found that the lack of a right to strike is compensated by, among other things: the comprehensive participatory rights of trade unions and civil servants (such as the statutory right of the trade union umbrella organizations to participate in the process of drafting legal provisions for the civil service, and the participation rights of civil servants through staff councils), and the rights linked to the special status of civil servants, including the constitutional and judicially verifiable right to adequate maintenance. The Government also highlights that the ECtHR found that the interference with freedom of association through the prohibition of strikes was justified, as the Court considered effective public administration (in this specific case, the rights of others to education) to be a legitimate aim. In addition, according to the Government, in assessing the margin of appreciation afforded to national authorities under the European Convention on Human Rights concerning restrictions on the freedom of trade unions, the ECtHR emphasized the duality of employment status of teachers, and the possibility for teachers in Germany to practice the profession as employees with the right to strike rather than as civil servants.

The Committee takes due note of the ECtHR judgment, in which the latter concluded that “the measures taken against the applicants did not exceed the margin of appreciation afforded to the respondent State in the circumstances of the present case and were shown to be proportionate to the important legitimate aims pursued”, and that accordingly, “there has been no violation of Article 11 of the [European] Convention [on Human Rights]” (paragraph 147 of the judgment). The Court recalled nevertheless “that the right to strike constitute[d] an important instrument for a trade union to protect the occupational interests of its members and in turn for the members of a trade union to defend their interests” (paragraph 128). The Court also noted the existence of a strong trend among the monitoring bodies set up under the specialized international instruments, towards considering that civil servants, including teachers with that status, should not per se be prohibited from strike action, and that this trend was also reflected in the practice of Contracting States (paragraphs 125 and 126). The Court acknowledged that “[t]he competent monitoring bodies set up under the specialised international instruments – notably the CEACR … as supervisory bodies for the ILO standards. … – have repeatedly criticised the status-based prohibition of strikes by civil servants in Germany, including, in particular, with respect to teachers with that status” (paragraph 126). The Committee notes that the Court reiterated that “[w]ithout calling into question the analysis carried out by those bodies in their assessment of the respondent State’s compliance with the international instruments which they were set up to monitor … its task [was] to determine whether the relevant domestic law in its application to the applicants was proportionate as required by Article 11 § 2 of the [European] Convention [on Human Rights], its jurisdiction being limited to the Convention” (paragraph 126).

The ECtHR’s judgment concerns the interpretation of the European Convention on Human Rights. Just as the ECtHR’s “jurisdiction is limited to the [European Convention on Human Rights], [with] no competence to assess a respondent State’s compliance with the relevant standards of the ILO” (paragraph 101 of the judgment), the Committee has no competence to pronounce itself on the Courts’ interpretation of the European Convention on Human Rights or Germany’s compliance therewith. Rather, the mandate of the Committee consists in undertaking an impartial and technical analysis of how the Conventions are applied in law and practice by Member States; in doing so, it must determine the legal scope, content and meaning of the provisions of the Conventions (see the Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part A), 112th Session, Geneva, 2024, General Report, paragraph 30), and, in the present case, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In this respect, the Committee recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While it has recognized that the right to strike may be restricted or even prohibited in the public service, the Committee has established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. In the Committee’s view, public sector teachers are not included in this category and should therefore benefit from the right to strike without being liable to sanctions, even though, under certain circumstances, the maintenance of a minimum service may be envisaged in this sector (see the 2012 General Survey on the fundamental Conventions, paragraphs 129 and 130). The Committee thus observes that the situation in Germany is still not in line with the Convention in this regard. Regretting that it has not yet been possible to find a solution to this long-standing matter, the Committee encourages the Government to continue engaging 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.