A European Dialogue on Strike Action
The Strike Ban for German Civil Servants between Karlsruhe and Strasbourg
With its decision in Humpert and others v Germany of 14 December 2023, the European Court of Human Rights (‘ECtHR’) settled a long-standing debate: The ban on strikes for German Civil Servants does not violate the rights under the European Convention on Human Rights (‘ECHR’). This decision ends the strategic litigating efforts of the applicants and their union to obtain the right to strike for the approximately 1.7 million civil servants in Germany. The judgment is also the culmination of an extraordinarily intense dialogue between Strasbourg and Karlsruhe. Both courts, the ECtHR and the German Federal Constitutional Court (‘FCC’), went to great lengths to decide the case before them with diligent consideration of the position of the respective other court. Against this background, I argue that the careful consideration and engagement with ECtHR case law holds potential for the FCC in future controversial cases and should also be born in mind by applicants and litigants in Karlsruhe.
A “Package Deal” for Civil Servants based on the “Traditional Principles” of the Civil Service
Historically, civil servants hold a specials tatus in the German employment market. Their status is characterized by the ‘traditional principle of the career service system’ (“hergebrachte Grundsätze des Berufsbeamtentums”), which have constitutional status under Art. 33(5) of the Basic Law (hereafter: GG). On the basis of these structural principles, civil servants benefit from constitutional guarantees regarding lifetime employment (FCC, 12 June 2018, para. 122), alimentation (paras. 113, 151), entitlement to health insurance benefits (para. 181) and pensions (para. 181). However, these rather advantageous principles come as a ‘package deal’ that also includes restrictions and a duty of loyalty owed by civil servants to their employer. According to the FCC, the interlinked principles are aimed to guarantee the maintaining of a stable administration (para. 157). It is against this background that civil servants a general banned from strike action in Germany.
The German State school system, however, accommodates a duality regarding the employment status of teachers. Two-thirds of the staff working in the public service are employed as contractual State employees and are therefore entitled to strike.
The status of civil servants has been politically and legally controversial for decades, and fueled in-depth legal analysis by e.g. Ulrike Pollin, Richard N. Lauer and Laura Hering. Several international courts and bodies have underlined the fundamental importance of the right to strike, often in direct reference to the situation in Germany (e.g. the European Court of Justice in Laval and Viking; the UN Committee on Economic, Social and Cultural Rights in its recommendations to Germany; the UN Human Rights Committee reiterating that recommendation; the International Labour Organization’s Committee of Experts in its 2012 report; the European Committee of Social Rights in its conclusions on Germany). In 2008 and 2009, the political debate on the ban for civil servants gained particular momentum following two judgments in Strasbourg. In Demir and Baykara v Türkiye and Enerji Yapı-Yol Sen v Türkiye, the ECtHR found that the general ban on strikes for all Turkish civil servants and disciplinary penalties for teachers that went on strike violated the Convention. Along these lines, the Federal Administrative Court considered the applicable German law to be incompatible with the guarantees of Art. 11 ECHR and called on the legislator to take action. Finally, four applicants filed constitutional complaints with the FCC challenging the disciplinary measures imposed on them for going on strike and for stopping teaching for a few hours to demand better working conditions. They alleged a violation of their constitutional rights and referred explicitly to the decisions of the ECtHR.
The Relationship between the courts in Karlsruhe and Strasbourg
By consequence, the FCC had to assess the legality of the strike ban for civil servants from a constitutional perspective, taking into account the conventional guarantees under the ECHR. The relationship between the two courts is complex and at times conflicted, as the saga surrounding Caroline von Hannover has shown. In Germany, the ECHR ranks as statutory federal law and thus below constitutional rank (FCC, 26 March 1987, Presumption of innocence, p. 370). However, the FCC decided early on that the Convention and the ECtHR’s judgments must be taken into account when interpreting the constitutional rights (ibid, p. 370). This has rightly been described as ‘confusing’ regarding the hierarchy of norms. The relationship between the judgments of the ECtHR and the German courts’ assessment was then most prominently established in the Görgülü decision. Therein, the FCC gave constitutional status under Art. 20(3) GG to the duty of German courts to consider the Conventional rights in making their decisions (FCC, 14 October 2014, Görgülü, para. 29). In this sense, the FCC has opted for an “international and European dialogue” between courts, with the German constitution having the “last word”. (FCC, 4 May 2011, para. 89). In her excellent empirical analysis, Raffaela Kunz concludes that the FCC thus imposed a procedural “duty to consider” the Strasbourg jurisprudence, rather than a “duty to comply”.
The Constitutionality of the ban on strikes according to the court in Karlsruhe.
While the constitutional considerations of the FCC’s judgment in 2018 (paras. 112-188) had several important implications for the German civil service system, this piece focuses on the inter-Court dialogue and only briefly summarizes the key findings of the constitutional assessment (for more, see e.g. Jötten/Machts and Buchholtz). The FCC held that the material scope of Art. 9(3) GG includes the right to strike action (paras. 114-116) even for civil servants (para. 113). While it found the strike ban to infringe on the rights guaranteed (para. 141), the FCC considered this infringement to be justified (paras. 142-162). It recognized the absolute strike ban as one of the ‘traditional principles’ of the German career civil service system (para. 144) and established that it is inseparably linked to the constitutional principle of alimentation and the duty of loyalty (para. 152). As a result, it ruled the restriction to be compensated within the ‘package deal’ of the constitutional concept of the civil service system (para. 158). Therefore, the strike ban for civil servants did not violate the freedom of labour coalitions (‘Koalitionsfreiheit’) under Art. 9(3) GG.
The Conventionality of the absolute ban according to the courts in Karlsruhe and Strasbourg
With regard to the relationship between the two courts, it is noteworthy that the FCC took the utmost care not to give the impression that it was openly disagreeing with the ECtHR. At the same time, it clearly indicated the limits of the adaptation of the German constitutional rights to European jurisprudence by referring to the core of the German “constitutional identity” (para. 133).
Within the constitutional requirement of the Constitution’s openness to international law (“Völkerrechtsfreundlichkeit”, paras. 126-135; paras. 163-188), the FCC undertook an in-depth examination of conventionality of the strike ban. It first referred to decisions of ECtHR in the applicable law section (paras. 4-6) and secondly extensively outlined recent changes to the relevant case law in its application to the present case (paras. 164-171). Finally, the FCC again referred to several Strasbourg cases to establish its position that the ban on strikes was not even in “collision” with the ECtHR jurisprudence (paras. 163-188). This extensive engagement with Strasbourg jurisprudence is rather unusual. In comparison, the same Senate just recently handed down a decision in which only a brief general section reported on the case law from Strasbourg, without engaging later on with it (FCC, 20 June 2023, Prisoner remuneration, paras. 23-24). Nevertheless, the ECtHR disagreed in its 2023 judgment with the FCC and found that the disciplinary measures had constituted an interference with Art. 11(1) ECHR (§ 113).
The core of both, the FCC’s judgment in 2018 and the ECtHR’s in 2023, is the justification of the interference, as the FCC also elaborated on this point as a subsidiary (“in any case justified”, paras. 176-188). Both courts agreed with the German government that for the purposes of Art. 11(2) ECHR the ban was “prescribed by law” given the consistent interpretation by German courts (ECtHR, §§ 116-117; FCC, para. 177) and that the State’s pursued objective of maintaining a stable administration was a “legitimate aim” (ECtHR, § 118; FCC, para. 178).
Thirdly, and most extensively, both courts dealt with the question whether the ban on strike action is to be considered “necessary in a democratic society” (ECtHR, §§ 119- 143; FCC, paras. 179-183). Crucial in determining the applicable graduated margin of appreciation is the question whether a prohibition on strikes affects an “essential element of trade-union freedom” under Art. 11(1) ECHR. Given that the ECtHR had previously left this categorization open, it was not surprising that this aspect was prominently debated in the public hearing in Strasbourg. The ECtHR repeated that strike action was protected under Art. 11 ECHR (§ 104) and that it constituted “one of the most important means” by which trade unions can fulfil their functions (§ 108). However, as this right is not absolute (§ 107), it concluded that the classification as an essential element is “context-specific” (§ 109) and went on to consider the existing safeguards to enable unions to defend effectively occupational interests (§ 128). It seems that the FCC and the German Government have taken to heart the ECtHR’s indication in Enerji Yapi-Yol Sen that Türkiye had “not demonstrated” the necessity of its ban (Enerji Yapi-Yol Sen, § 32, cited by the FCC in para. 179) and thus, both provided sufficient arguments to distinguish the specific German context from the Turkish cases. For the ECtHR, several aspects seem to have been decisive, which the FCC had also listed as “compensation” for the restriction in its 2018 judgment (para. 183). First, the fact that German civil servants are allowed to form and join trade unions (§ 129), which then can participate via their ‘umbrella organizations’ when relevant legal provisions are drawn up (§ 130-132) and regularly meet the competent ministry (§ 132). Second, the individual right of civil servants to adequate alimentation (§ 133), which can be enforced by effective judicial means (§ 134). In this regard, the ECtHR even took over the term of a “reciprocal system of interrelated rights and duties” (§ 136, introduced within the recital of the FCC’s judgment in §§ 24, 26, 36; FCC, para. 181) guaranteeing the effective performance of functions in the German civil service system. Notwithstanding the factual and financial difficulties raised by the applicants in this regard at the hearing, the ECtHR also relied on the fact that the applicants had the possibility of opting for a contractual status with the right to strike (§ 142). Finally, the ECtHR held that the disciplinary (financial) sanctions against the applicants were not severe (§ 143).
In summary, the ECtHR found that the effects of the strike ban could not outweigh the convincing justifications presented and agreed that the situation was different than in the previously examined cases (para. 138). In the same breath as the justifications put forward in the Government’s submissions, the Court also mentions with appreciation those “reflected in the extensive assessment” of the FCC (§ 146).
Outlook
The diligence shown by the Karlsruhe court in engaging with the Strasbourg jurisprudence on strike action, while clearly indicating the limits of the Constitution’s openness to international law, is remarkable – and its efforts have been rewarded. Despite seemingly opposing jurisprudence, the ECtHR ruled that the absolute ban in Germany did not violate the Conventional rights and accepted the FCC’s distinction from the Turkish cases. Given the emphasis of the context-specific assessment of such a ban and the reliance on specific aspects of the interrelated rights and duties of German civil servants (see also the concurring opinion of Judge Ravarani), an extension of this jurisprudence on other State parties is rather unlikely.
The lesson for the FCC when dealing with politically sensitive cases in the future is clear: the mutual influence between Strasbourg and Karlsruhe cannot be overlooked and should be taken into account in its judgments. This holds particularly true for applicants and litigants, who should not underestimate the ECtHR’s influence and extensively engage with it in their submissions to the Karlsruhe court, as former Justice Baer urged some years ago.
It remains yet to be seen, whether the forthcoming Advisory Opinion by the International Court of Justice on the right to strike will fuel another round of disputes. Perhaps it will soon be time for an “international dialogue” of courts regarding the right to strike.
The author would like to thank Dr Isabella Risini for her excellent comments on an earlier draft and her unwavering support.
Thank you for an inspiring analysis and a concise recapitulation of a long story, both regarding the interaction between the Federal Constitutional Court (FCC) and the European Court of Human Rights (ECtHR) and the question of the “Beamtenstreikverbot”. While I mostly agree with the analysis, the overall conclusion is – in my view – a bit too harmonious and optimistic. There are quite clear indications that the ECtHR felt challenged in its role as authoritative interpreter of the Convention by the approach taken by the FCC. Two points of illustration:
1. The thorough analysis of the ECHR and the ECtHR’s jurisprudence on Art. 11 ECHR leads the FCC to its own interpretation of the Convention. It thus becomes a competitor to the ECtHR. The resulting tension is quite obvious in the part on Art. 11 section 2 sentence 2 ECHR, where the FCC went beyond the existing jurisprudence of the ECtHR (paras. 186-188 of the FCC judgment). From a strictly legal point of view this was unnecessary, given that the FCC had already considered the obligation not to strike to be justified under Art. 11, para. 2 sentence 1 ECHR. On the basis of the pleadings of the Government (which did not argue a justification under sentence 2), the ECtHR avoids taking a position on the issue, but adds a nuance of potential disagreement when stating that it “reiterates, however, that the concept of “the administration of the State” should be interpreted narrowly, in the light of the post held by the official concerned” (para. 114).
2. I would also highlight paras. 69-72 of the Humpert judgment. There, the Court describes in an abstract manner – and thus somewhat surprisingly – its own role as an interpreter of the Convention. The section is placed prominently at the beginning of the Court’s substantive reasoning. I would read this section as possibly constituting a reaction to the FCC’s pressing ahead on Art. 11, para. 2 sentence 2, and also on the general remarks by the FCC on the limits of “völkerrechtsfreundliche Auslegung”, which the ECtHR summarizes neatly in its judgment in para. 36.
In sum: I agree that, in the end, the interaction between Strasbourg and Karlsruhe in the present cases avoided an escalation in a highly sensitive area. But I would not see the Humpert judgment as a “reward” for a convention-friendly approach by the FCC. Rather, the ECtHR takes a vigilant, maybe even a little bit suspicious attitude towards the FCC. And: it can well be argued that the stance taken by the FCC in its ruling on the matter gave the ECtHR some good reasons for remaining cautious.
Both Justine Badura’s blog and Christian Walter’s comment present many interesting thoughts, some of which are in agreement with each other and some of which emphasise their own points, from which the difficult relationship between the Federal Constitutional Court (FCC) and the ECtHR becomes clear to some extent. Mrs Badura is absolutely right in stating that a discussion of ECtHR case law is useful and should also be taken into account in Karlsruhe. However, Christian Walter is also right that the image of unclouded harmony must be called into question, despite the fact that the final headnotes of the courts are in line with each other:
Let’s start with the initial assertion that the ECtHR settled a long-standing debate with its judgement of 14 December 2023. This may be true for the debate between the FCC and the ECtHR, but probably not for other European contracting states with more or less liberal laws on strikes. Some governments might feel tempted to justify their existing and already criticised restrictions on the right to strike in relation to civil servants with this ruling. Others could see this as a temptation to restrict their previously rather liberal right to strike. One can only hope that the author is right in her outlook that an extension of this judgement to other contracting states is rather unlikely.
In any case, however, new rifts have been opened up, namely between the case law of the FCC and the ECtHR on German civil servants who do not exercise authority in the name of the state on the one hand and international labour law as a whole and the competent adjudicative bodies, namely the UN Committee on Economic, Social and Cultural Rights, the UN Human Rights Committee, the ILO Committee on Freedom of Association and the ILO Committee of Experts, the Eur. Committee of Social Rights. It is to be expected that these bodies will stick to their previous case law and continue to criticise Germany for its violations. At the same time, it is to be expected that these international bodies, including the Inter-American Court of Human Rights, will be clearly irritated by this U-turn of the ECtHR, which, contrary to its previous methodology of the “living instrument”, cited the concurring opinion of all these bodies, but simply declared it irrelevant for its judgement (para. 127). For procedural reasons, perhaps not the same applicants, but other reprimanded civil servants could make use of the optional protocols to the International Covenant on Economic, Social and Cultural Rights or the International Covenant on Civil and Political Rights and by this way make violations of Art. 8 of the Social Covenant or Art. 22 of the Civil Covenant the subject of a review by the UN committees
The 2nd Senate of the FCC did not deal with the case law of the ECtHR out of its own affection, but because the entire proceedings were focussed on the guarantee of the right to strike as a human right under the Convention, as recognised by the ECtHR. Otherwise, the applicants could have left it at the judgement of the Federal Administrative Court, which had already certified that the general ban on civil servant strikes was contrary to the Convention.
After all, there were not just two judgements on Turkey, but a whole chain of ECtHR judgements stating that teachers do not carry out sovereign activities in the administration of the state.
In fact, the 2nd Senate of the FCC tried to give the impression that it agreed with the ECtHR. It did not go to great lengths to justify its reasoning, as this was also difficult to justify. Some justifications are also contradictory. If a general ban on civil servants´ strikes independent from their functions performed, i.e. with the same scope for the administration of the state, for schools, local authorities, partially privatised companies, railways, post offices and postal banks were in line with European law, it would not be necessary to additionally emphasise the special function of the school system and the state’s educational mandate (the ECtHR is now facing the same criticism). If the FCC had really complied with the ECHR, it would not have been necessary to immediately construct the limits of a Convention-compliant interpretation with formulas such as
“Contextualisation … active (reception) process … no precedence over the German constitutional legal order, but only an interpretative maxim for the Basic Law … against an undifferentiated transfer in the sense of a mere parallelisation of terms” (§§ 131-133).
„Kontextualisierung … aktiver (Rezeptions-)Vorgang… kein Vorrang vor der deutschen Verfassungsrechtsordnung, sondern nur Auslegungsmaxime für das Grundgesetz … gegen eine undifferenzierten Übertragung im Sinne einer bloßen Begriffsparallelisierung“ (Rn 131-133).
In fact, these statements were not only unnecessary, as Christian Walter rightly points out, but also a provocation and a challenge to the ECtHR, with which the 2nd Senate of the FCC claimed to deny ECtHR judgements their domestic effect in particular cases and thus to secure its right to final judgements by invoking its own constitution. This claim is reminiscent of the opinion of the ECJ in Luxembourg of 18 December 2014 – 2/13, which also refused to submit to the jurisdiction of the ECtHR and thus blocked the EU’s accession to the ECHR, at least until now. And the ECtHR is certainly aware of the fact that there are draft bills in the House of Commons of the United Kingdom intending to make the validity of ECtHR judgements dependent on the approval of the Supreme Court of the United Kingdom.
Christian Walter rightly mentions the timid responses of the ECtHR, which cannot tolerate such provocation: on the one hand, the affirmation of its case law on the narrow interpretation of the concept of administration of the state in Art. 11 para. 2 sentence 2 ECHR (§ 114), on the other hand, the description of its understanding of its role in §§ 69-72 of the Humpert judgement that ” a State cannot invoke its domestic law, including the Constitution, as justification for its failure to respect its international-law commitments (see Article 27 of the Vienna Convention on the Law of Treaties)” and that the Court maintains its claim to monitor compliance with these obligations under international law.
After these announcements, clear words in the direction of the FCC would have been expected, but they did not materialise. The references to Art. 11 para. 2 sentence 2 of the Convention remained without consequences, as the Court does not apply this special provision at all, but follows the Federal Government, which relied on Art. 11 para. 2 sentence 1 to justify bans on all civil servants´ strikes independent from their functions performed and thus undermines the limits of sentence 2 of this provision. Judge Serghides rightly criticised this in his dissenting opinion.
In order to avoid conflict with the FCC, the Court buckles before the Constitutional Court, ignores its own case law, which has been developed over years, and largely adopts the FCC’s reasoning with all the contradictions it contains. The FCC has thus prevailed.
There is still a slight difference, although the terminology is the same: While the FCC pretends to contextualise ECtHR judgments on other contracting states, i.e. to question their applicability to its own country, the Court contextualises the legal question of whether the right to strike constitutes an essential element of freedom of association. If this could be followed, the right to strike would be essential in one country and not in another, depending on the context. The idea of contextualising a human right or a definition leads us to the limits of intellectual capacities and is alien to common legal logic. Is it conceivable that the quality of a human right depends on the framework conditions (context) that any state party provides for itself? And in which country should this human right be essential and where not? Although the FCC and the ECtHR postulate their agreement in the outcome of the specific application proceedings, a number of questions remain unanswered for the future in Germany and Europe.