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Ban on strike action for civil servants is constitutional
Press Release No. 46/2018 of 12 June 2018
Judgment of 12 June 2018
2 BvR 1738/12, 2 BvR 646/15, 2 BvR 1068/14, 2 BvR 1395/13
The legislature must have regard to the ban on strike action for civil servants as an independent and traditional principle of the career civil service system (Berufsbeamtentum). This ban complies with the principle of the Constitution’s openness to international law (Grundsatz der Völkerrechtsfreundlichkeit) and is compatible with the guarantees of the European Convention on Human Rights (ECHR) in particular. For these reasons, the Second Senate of the Federal Constitutional Court has rejected four constitutional complaints directed against the ban on strike action for civil servants in a judgment pronounced today.
Facts of the case:
The complainants are or were teachers with civil servant status at schools in three different federal states (Laender). In the past, they took part in protests and strikes organised by a trade union during working hours. In response to their participation, the competent disciplinary authorities imposed sanctions on the complainants. The authorities held that by participating in these events, the civil servants had breached fundamental duties under civil service law. In particular, civil servants were not allowed to be absent from work without permission. In the initial proceedings before the regular courts, the complainants challenged the respective disciplinary orders, ultimately without success.
Key considerations of the Senate:
The acts of public authority challenged by the constitutional complaints are not objectionable under constitutional law. Ultimately, the authorities presumed that a ban on strike action is in place for German civil servants. In doing so, they did not disregard the relevant constitutional requirements.
1. The matter falls within the material scope of protection of Art. 9(3) of the Basic Law (Grundgesetz – GG). It is true that civil servants are excluded from collectively agreed pay. Yet in the case at hand, it is decisive that the disciplinary orders sanctioned the participation in measures initiated by trade unions and related to collective bargaining – even though not for the complainants themselves. In line with an interpretation that is in accordance with the Constitution’s openness to international law, such a broad understanding of Art. 9(3) GG also draws on the assessments of the European Court of Human Rights regarding Art. 11 ECHR. According to these assessments, secondary strikes are at least an accessory aspect of the freedom to form and join trade unions (Koalitionsfreiheit).
2. The challenged decisions of the authorities and the courts impair the fundamental right under Art. 9(3) GG. Any curtailing of the fundamental rights guarantees limits the freedom to form and join trade unions. The disciplinary sanctions imposed on the complainants and the upholding of the challenged decisions by the disciplinary courts restrict the ability to participate in labour disputes.
3. However, the impairment of the freedom to form and join trade unions is justified by sufficiently weighty interests that are protected under constitutional law.
a) The ban on strike action for civil servants is an independent and traditional principle of the career civil service system within the meaning of Art. 33(5) GG. It meets both requirements necessary for being qualified as a traditional principle: the requirement of traditionality, since it goes back to a line of tradition established at least in the state practice of the Weimar Republic, and the requirement of substantiality, since its content has a strong link to the foundations of the German career civil service under constitutional law, in particular to the duty of loyalty under civil service law and to the principle of alimentation (Alimentationsprinzip).
b) The ban on strike action is part of the institutional guarantee under Art. 33(5) GG; the legislature must have regard to it. A right to strike, even for some groups of civil servants only, would interfere with the core structural principles guaranteed by the Basic Law and would fundamentally reshape the understanding and regulations of the civil service. It would erode the principles of alimentation, of lifetime employment, of the duty of loyalty and the principle that material rights and duties, including remuneration, must be regulated by the legislature. At the very least, it would require fundamental changes to these principles, which are essential to the functioning of the civil service. If a right to strike was granted, there would be no scope, for instance, for regulating remuneration by law. If civil servants’ remuneration or parts of it could be negotiated by means of labour disputes, the existing possibility for civil servants to enforce alimentation, guaranteed by the Constitution, before the courts could no longer be justified. Yet the alimentation principle, in combination with the principle of lifetime employment, serves to ensure the independent exercise of duty and guarantees civil servants the means necessary to fulfil their obligation to fully dedicate themselves to their office.
c) A legal provision that expressly lays down the ban on strike action for civil servants is not required under constitutional law. The Land laws on civil servants include provisions on the absence from work and the fundamental duties of civil servants, regulated by law, which include the disinterested exercise of duty for the common good and the obligation to follow instructions. At least in combination, they sufficiently specify the ban on strike action derived from Art. 33(5) GG.
d) The restriction of the freedom to form and join trade unions is not objectionable under constitutional law to the extent that it concerns the participation of civil servants in labour disputes. The ban on strike action for civil servants also accommodates the principle of practical concordance. The conflict between the freedom to form and join trade unions and Art. 33(5) GG must be resolved in favour of the ban on strike action for civil servants. The weight of the interference with Art. 9(3) GG is not unreasonable for civil servants. A ban on strike action does not result in the complete irrelevance of the freedom to form and join trade unions and does not render it entirely ineffective. Moreover, the legislature has created provisions designed to help compensate for the restriction of Art. 9(3) GG for civil servants, in particular participation rights of the trade unions’ umbrella organisations when legal provisions for the civil service are drawn up. Another element of these compensating measures is the alimentation principle under civil service law. It grants civil servants the right, which is equivalent to fundamental rights, to enforce the state’s duty of alimentation before the courts if necessary. In this reciprocal system of interrelated rights and duties of civil servants, expansions or restrictions of one right or duty of the civil service generally also result in changes to the other rights or duties. The civil servant status does not permit “cherry-picking”. A right to strike (for certain groups of civil servants) would trigger a chain reaction with regard to the structuring of the civil service and would affect essential principles of civil service law and related institutions.
A weighing of the freedom to form and join trade unions against the traditional principles of the career civil service system in accordance with the principle of practical concordance does also not require that the ban on strike action be limited to civil servants whose main role is to exercise public authority on the basis of Art. 33(4) GG. Dividing civil servants into groups that have or do not have the right to strike based on their different functions would entail difficulties of distinction. Regardless of these considerations, the recognition of a right to strike for “civil servants in marginal areas” would mean forgoing the guarantee of a stable administration and the exercise of state tasks other than those of public authority. Besides, a right to strike restricted in this manner would create a special category of “civil servants with the right to strike” or “civil servants subject to collective agreements”, which would undermine the dual and clearly structured nature of German public service law. While the alimentation principle would continue to apply for civil servants who exercise core tasks of public authority, other civil servants would be given the possibility of enforcing demands regarding their working conditions through labour dispute measures where applicable, while keeping their civil servant status.
4. The ban on strike action for civil servants in Germany complies with the principle of the Constitution’s openness to international law and is in particular compatible with the guarantees of the European Convention on Human Rights.
a) Art. 11(1) ECHR grants every person the right to freedom of peaceful assembly and to freedom of association with others; this also includes the right to form and join trade unions for the protection of their interests. In its recent case-law, the European Court of Human Rights has further specified the guarantees of Art. 11(1) ECHR and the conditions of interference under Art. 11(2) ECHR. This case-law provides direction and guidance; beyond the scope of application of Art. 46 ECHR, the specific circumstances of the case must particularly be considered to provide for contextualisation. In light of the foregoing, it can neither be established that the current legal situation in Germany is not in compliance with the Convention, nor that domestic law conflicts with the European Convention on Human Rights. Art. 9(3) GG and the related case-law of the Federal Constitutional Court specify that German civil servants are also subject to the personal scope of protection of the freedom to form and join trade unions without exception, but cannot exercise the right to strike as one manifestation of Art. 9(3) GG due to conflicting constitutional law (Art. 33(5) GG); thus they are in accordance with the considerations of the Convention.
b) Regardless of the question whether the ban on strike action for civil servants constitutes an interference with Art. 11(1) ECHR, it is in any case justified under Art. 11(2) first sentence or Art. 11(2) second sentence ECHR based on the particularities of the German system of the career civil service.
aa) In Germany, the ban on strike action is prescribed by law within the meaning of Art. 11(2) first sentence ECHR. Domestic law provides the necessary basis required for such a ban. The laws on civil servants of the Federation and the Laender include specific provisions for all civil servants regarding their absence from work without permission and their obligation to follow instructions. Participating in strike action without permission is incompatible with these provisions. Moreover, the ban on strike action for civil servants is a manifestation of Art. 33(5) GG that has been recognised by the highest courts for decades.
The ban on strike action also meets the requirements arising from the case-law of the European Court of Human Rights, insofar as an interference with Art. 11(1) ECHR can only be justified by a pressing social need and its restriction must be proportionate. According to this case-law, if a restriction strikes at the core of trade-union activity, the national legislature has a lesser margin of appreciation and more is required to justify the resulting interference, in the general interest, with the exercise of trade-union freedom. Conversely, if it is not the core but a secondary or accessory aspect of trade-union activity that is affected, the margin of appreciation is wider and the interference is more likely to be proportionate.
Against this background, a ban on strike action for German civil servants and specifically for teachers with civil servant status is justified under Art. 11(2) first sentence ECHR. The complainants, teachers with civil servant status, participated in strike action called by the German Education Union (Gewerkschaft Erziehung und Wissenschaft – GEW). This union represents both teachers with civil servant status and teachers with employee status. Given the legal situation, the GEW negotiates collective agreements with the Employers' Association of the Laender (Tarifgemeinschaft der Laender) for teachers with employee status only. The federal legislature and the respective Land legislatures, which have exclusive competence for determining the working conditions of civil servants, decide whether and to what extent the outcomes of collective bargaining for employees in the public sector are transferred to civil servants. In part, the complainants sought to bring about such a transfer of collective bargaining outcomes by means of their participation in strike action. This behaviour is not a core aspect of the guarantees of Art. 11(1) ECHR. The wide margin of appreciation that is generally granted to the Federal Republic of Germany in such cases has not been exceeded in the case at hand. It is decisive that in the system of German civil service law, civil servant status entails interrelated rights and duties; expansions or restrictions of one right or duty of the civil service generally also result in changes to the other rights or duties. In particular, granting a right to strike to civil servants would be incompatible with upholding fundamental principles of civil service law. This would mainly concern civil servants’ duty of loyalty, the principle of lifetime employment and the principle of alimentation, which includes remuneration regulated by law. Granting a right to strike to civil servants would fundamentally change, and thus call into question, the system of German civil service law, a particular feature of the Federal Republic of Germany.
The balancing of interests against the rights and freedoms of others to be undertaken under Art. 11(2) first sentence ECHR also has to include the fact that in the case of the complainants, the ban on strike action serves to safeguard the right to education, and thus serves to protect a human right enshrined in Art. 2 of the First Protocol ECHR and in other international treaties. Other aspects that must be considered are the above-mentioned compensating measures for the right to strike, in particular the involvement of trade unions in legislative procedures and the possibility of judicial review regarding alimentation.
bb) In addition, as teachers with civil servant status, the complainants are members of the administration of the state within the meaning of Art. 11(2) second sentence ECHR. Pursuant to Art. 11(2) second sentence ECHR, the exercise of the guarantees under Art. 11(1) ECHR can be restricted for members of the armed forces, of the police or of the administration of the state – in the Senate’s opinion, the last group also includes teachers with civil servant status. The restrictions that can be imposed on the above-mentioned groups of persons must be interpreted strictly. Yet for teachers at state schools, the relevant group in these proceedings, the state has a special interest in the discharge of duties by civil servants, which justifies such restrictions. The school system and the state’s educational mandate are of great significance under the Basic Law (Art. 7 GG) and the Laender constitutions.