Bundesverfassungsgericht

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Constitutional complaint against „third option“ in church employment law inadmissible

Press Release No. 64/2015 of 02 September 2015

Order of 15 July 2015
2 BvR 2292/13

In an order issued today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible a constitutional complaint challenging labour court decisions dealing with the “third option” (Dritter Weg) in church employment law. The constitutional complaint was lodged by a trade union that, while having won the lawsuit before the Federal Labour Court, still felt aggrieved by the court’s reasoning. The union lacks the necessary standing to lodge a constitutional complaint. Neither is it adversely affected by the operative part of the order, nor – by way of exception – does it follow from the court’s reasoning that the union is presently and directly affected.

Facts of the Case and Procedural History:

Under the „third option“, the terms of employment contracts are neither unilaterally decreed by ecclesiastical employers (“first option”) nor determined by collective agreements (“second option”), but by a Labour Law Commission (Arbeitsrechtliche Kommission). This commission is a body under church law in which employers and employees are equally represented. It is tasked with creating law that regulates conclusion, content and termination of individual employment contracts. If no decision can be reached in the Labour Law Commission, the issue will be referred to a Conciliation Committee (Schlichtungsausschuss) the members of which also equally represent employers and employees. Its decisions are final. Strikes and lockouts are prohibited.

The complainant is a trade union. The plaintiffs of the initial proceedings are two protestant regional churches and seven social welfare institutions of the protestant church (Diakonie). In the initial proceedings, they asked for an injunction obliging the complainant to abstain from striking or calling for strikes in the plaintiffs’ institutions. The Higher Labour Court reversed the Labour Court’s judgment, which had granted the relief sought in almost all points, and dismissed the case. The plaintiffs’ appeal on points of law remained unsuccessful. The complainant challenges the decisions by the regular courts, in particular the judgment by the Federal Labour Court. It claims that while it was not adversely affected by the operative part of the judgment, the same did not apply to the reasoning. In particular, the complainant believes it to follow for the case at hand that union strikes concerning collective bargaining unlawfully interfere with the churches’ right of self-determination and that such strikes without a collective bargaining purpose are generally unlawful.

Key Considerations of the Senate:

1. Admissibility of a constitutional complaint presupposes that the complainant asserts a violation of his or her fundamental rights or rights equivalent thereto by an act of public authority (standing to lodge a constitutional complaint [Beschwerdebefugnis], cf. Art. 93 sec. 1 no. 4a of the Basic Law [Grundgesetz - GG] and § 90 sec. 1 of the Federal Constitutional Court Act [Bundesverfassungsgerichtsgesetz – BVerfGG]).

a) If a constitutional complaint challenges a judicial decision, the complainant can usually only be adversely affected by the operative part of the decision; this part alone determines with legal force which legal consequences are attached to the facts that have been established. It is necessary to be affected de iure; it does not suffice to be affected merely de facto. Legal observations or observations that are or are considered to be disadvantageous and are contained in the judicial reasoning do not result, as such, in being affected de iure.

b) Constitutional complaints directed against the reasoning of a judicial decision have so far only been admitted by the Federal Constitutional Court in strictly limited exceptional cases. Those exceptions do not apply in this case.

c) To have standing to lodge a constitutional complaint, the complainant has to be able to assert that one of his or her fundamental rights or rights equivalent thereto is violated individually, presently and directly. If a constitutional complaint challenges a judicial decision, this usually is the case; therefore, in general, this is not reviewed in greater detail. However, reviewing whether the complainant really is affected individually, presently and directly is necessary under particular circumstances, e.g. if – as in the present case – the complainant claims to be negatively affected by something other than the actually favourable operative part of the decision.

The criterion of being presently affected is used to distinguish between present and future adverse effect. The moment of lodging a constitutional complaint is the one decisive in this context. One is presently affected in this sense if a challenged legal provision affects one‘s legal position currently and not merely potentially, if, because of its future effect, a legal provision forces on to take irreversible decisions or if it is obvious that and how one will be affected by the provision in the future.

The person concerned is directly affected if no further act is necessary for his or her legal position to be affected. This requirement also serves to inform the Federal Constitutional Court of the regular courts’ assessment of the case. It therefore also concerns the issue of whether the complainant can reasonably be expected, before calling upon the Federal Constitutional Court, to initiate proceedings in the regular courts in the course of which a legal provision may be examined as to its constitutionality.

Principles concerning present and direct negative effect that have been elaborated by the Federal Constitutional Court on the basis of constitutional complaints against legal provisions also apply to constitutional complaints that challenge judicial decisions.

2. According to these standards, the complainant has no standing to lodge a constitutional complaint.

a) Pursuant to the principle that it is generally only the operative part of a judicial decision that negatively affects the complainant, the complainant in the case at hand is not aggrieved. The lawsuit filed against it has been completely dismissed.

b) The complainant is not for exceptional reasons presently and directly affected by the reasoning of the challenged Federal Labour Court decision.

aa) Contrary to its assertions, the complainant is not presently affected by the simple fact that the Federal Labour Court, instead of merely applying written law, developed new rules for the law of labour disputes, which has largely been shaped by jurisprudence. In doing so, the Federal Labour Court did not create law binding the complainant in the future. Regular courts are not bound by judicial development of the law in the same way as by statutes. In German law, generally, there is no legally binding precedent.

Nor is the complainant presently affected by the fact that church institutions might sue the complainant to pay damages or to refrain from striking or calling for strikes. The complainant claims it is unable to reliably plan union politics, yet does not address the issue of which irreversible decisions it is forced to take. Every statute and every judicial rule providing one party with possibilities may entail uncertainties for other parties. However, this does not allow constitutional complaints to be lodged even before regular courts have decided whether the rights were properly exercised.

Lastly, the conditions the Federal Labour Court elaborated for the “third option” do not permit a clear finding that and how the complainant will be affected in the future. Detailed predictions of how the rules of the Federal Labour Court must or will be implemented in practicing the “third option” are impossible to make. Particularly concerning involvement of the unions are there no detailed rules for the churches.

bb) Nor is the complainant directly affected by the challenged judicial decisions or by the conditions elaborated by the Federal Labour Court. The potential prohibition of strikes rather depends on provisions of church law or of bylaws and therefore requires further measures on the part of the churches and of the church institutions. The complainant can reasonably be expected to first initiate proceedings before the regular courts enabling the Federal Constitutional Court to learn about the regular courts’ assessment of the church law provisions that have been modified since.