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Constitutional complaint against call by a labour union to participate in a "flash mob" in retail stores unsuccessful

Press Release No. 35/2014 of 09 April 2014

Order of 26 March 2014
1 BvR 3185/09

The Third Chamber of the Federal Constitutional Court's First Senate has not admitted for decision the constitutional complaint of an employers' association against union-organised "flash mobs" that accompanied a strike in retail. Labour courts held that such a call was permissible in the case at hand. This interpretation of the law on labour disputes by the regular courts sufficiently takes into account the complainant's freedom of association, which is protected under Art. 9 sec. 3 of the Basic Law (Grundgesetz - GG). Thus, the constitutional complaint is unfounded.

Facts of the Case and Course of the Proceedings:

During a strike in retail in 2007, the labour union - the defendant in the initial proceedings - published a virtual pamphlet asking "Do you want to take part in a flash mob?" Those interested were requested to leave their mobile phone number to alert them via text message, to engage in some "targeted shopping" together, "in a branch were workers are on strike but people who have crossed the picket line are working", "for example like this: Many people buy a penny product at the same time and thus block the checkout area for a long time. Many people fill their shopping carts at the same time (please no fresh produce!!!) and then abandon them."

In December 2007, the union conducted such a "flash mob" in one store of a retail company. There were about 40 to 50 participants; the event lasted between 45 and 60 minutes. The complainant is an employers' association for the retail sector. Its legal action, aimed at prohibiting the union from calling for participation in other flash mobs such as this, did not succeed in all instances of the labour courts. The constitutional complaint challenges these decisions.

Key Considerations of the Chamber:

1. The challenged decisions by the regular courts do not violate the complainant's freedom of association protected under Art. 9 sec. 3 GG.

a) The protection of Art. 9 sec. 3 GG is not limited to strikes and lockouts as the traditionally recognised forms of industrial actions. In general, Art. 9 sec. 3 GG leaves it up to the coalitions to choose the means that they consider suitable for reaching their specific labour-related goals (koalitionsspezifische Zwecke). The Basic Law does not prescribe how to define the conflicting fundamental rights positions in detail; it does not require an optimisation of the conditions of a dispute. Instead, controversial industrial actions are reviewed under the principle of proportionality, so that the use of industrial actions does not lead to the dominance of one side in collective bargaining. It is thus not objectionable that in this case, the Federal Labour Court was guided by the principle of proportionality.

b) According to these considerations, the Federal Constitutional Court cannot establish a violation of the complainant's freedom of association by the challenged judgments. The Federal Labour Court considered, in particular, that the participation of third parties in a flash mob may increase the risk that these actions get out of control, because third parties are less likely to be influenced by the unions. It thus sets legal limits for the participation of third parties - which was indeed restricted in the case at hand. Furthermore, the flash mob must be recognisable as a union-supported industrial action, which is also important for damages that the employer may demand in case of illegal actions. In addition, the Federal Labour Court has dealt extensively with the question of effective countermeasures that an employer could use against a flash mob accompanying a strike. It is not the task of the Federal Constitutional Court to substitute its own assessment of the effectiveness of possible responses by the employers for that of the regular courts, as long as they do not subscribe to a clear error of judgment. Such an error is not evident in the case at hand. In particular, the Federal Labour Court also takes the employers' interests into account. There are thus no concerns under constitutional law regarding the regular courts' assessment that the exercise of property rights and a temporary closure of the store could be considered effective means of defence.

2. Furthermore, the complainant cannot successfully claim a violation of its fundamental rights under Art. 9 sec. 3 GG in conjunction with Art. 20 sec. 2 sentence 2 and sec. 3 GG, based on the argument that the challenged judgments disregard the constitutional limits of the judicial development of the law. Due to their obligation to provide justice, the courts have to provide effective legal protection. If the statutory parameters are inadequate, the courts must use established methods for the development of the law, to deduce from the existing legal basis what applies in the specific case at hand. If the labour courts did not decide on labour disputes because of a lack of legal regulations, they themselves would act in an unconstitutional way.

There are no further concerns under constitutional law that, based on the applicable law and pursuant to detailed deductions from the principle of proportionality, the Federal Labour Court does not consider union-driven flash mobs to be generally impermissible.