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

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

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 civil servants who are not engaged in the administration of the State, enjoy the right to collective bargaining. In this respect, the Committee noted the Government’s indications, in relation to the 2018 decision of the Federal Constitutional Court (Case No. 2 BvR 1738/12), that the prohibition of the right of all civil servants, irrespective of their duties and responsibilities, follows from article 33(5) of the Constitution, which enshrines the traditional principle of the career civil servants system (such as the payment of a salary commensurate with the civil service position, the duty of loyalty, and life time employment), and that this article provides for a constitutional restriction to freedom of association as guaranteed in article 9(3) of the Constitution. The Committee therefore regretted that public servants not engaged in the administration of the State continued to be deprived of the right to bargain collectively under the Convention. It also noted that proceedings in relation to the ban on the right to strike of civil servants had been brought before the European Court of Human Rights (ECtHR) and observed that any judgment rendered in this respect might also have repercussions on the right of civil servants to bargain collectively.

The Committee notes the Government’s indications, in response to its request regarding the outcome of the proceedings of the ECtHR, summarizing and highlighting certain aspects of the judgment (see Humpert and others v. Germany, judgment of 14 December 2023 – 59433/18, 59477/18, 59481/18, 59494/18), which the Committee notes in its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). While the Committee recalls that the claim before the ECtHR did not concern the ban on collective bargaining of public servants not engaged in the administration of the State, and that the Court did therefore not assess this question, it notes that the judgment in the context of its assessment, describes the participatory rights of civil servants and their unions. In this respect, the Committee notes that the Court recalls that working conditions of civil servants in Germany are regulated by legislation and not by collective agreements (see paragraph 130), and that their trade union umbrella organizations have the statutory right to participate in the process of drafting such legal provisions for the civil service (including as regards subject matters such as wages and paternal leave), and the participation rights of civil servants through staff councils, which the Court describes as participatory rights enabling the civil service unions to persuade the employer to hear what they have to say on behalf of their members (see paragraphs 130 to 132). In this context, the Committee recalls its view that the participatory rights as described in the judgment do not fully assure appropriate machinery for collective bargaining to public servants not engaged in the administration of the State. 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. Conscious of the special characteristics of the public sector, the Committee recalls that collective bargaining mechanisms may be adjusted in a way so as to take into account the particularities of the status of civil servants, while at the same time guaranteeing their right to bargain collectively. The Committee therefore 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 Confederation of German Employers’ Associations, 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 requests the Government to provide any relevant information in this respect.