The restrictions on trade union collective agreements imposed by German law were not disproportionate. Non-infringement of the freedom of association
JUDGMENT
Association of Civil Servants and Union for Collective Bargaining and Others v. Germany 05.07.2022 (application no. 815/18 and 4 others)
SUMMARY
The case concerned trade-union rights and notably legislation in Germany regulating conflicting
collective agreements. In particular, in the event of a conflict, only the collective agreement of the
largest trade union remained applicable.
Relying on Article 11 (freedom of association), the applicants complained that the relevant
provisions of the Uniformity of Collective Agreements Act had violated their right to form and join
trade unions, including the right to collective bargaining. They argued in particular that the
legislation had resulted in their not being able to conclude collective agreements in companies in
which a different trade union had more members, and in employers no longer wishing to negotiate
with them.
The Court found that the restrictions brought on by the legislation had concerned smaller trade
unions, which nonetheless retained other rights, including the right to collective bargaining and to
strike. Moreover, the legislation was intended to ensure the proper functioning of the collective
bargaining system in the interests of both employees and employers.
PROVISION
Article 11
PRINCIPAL FACTS
The applicants are three German trade unions: the Association of Civil Servants and Union for
Collective Bargaining, Marburger Bund – the Association of Employed and State-employed Physicians
in Germany and the Trade Union of German Train Drivers; and, six German nationals, who are
members of the third applicant trade union.
The applicants’ case before the European Court originated in the Uniformity of Collective
Agreements Act (Tarifeinheitsgesetz), which regulates conflicts that arise if there are several
collective agreements in one “business unit” (Betrieb) of a company. This Act, which entered into
force in July 2015, prescribes that, in the event of a such a conflict, the collective agreement of the
trade union which has fewer members in the business unit is no longer applicable.
The applicants lodged a constitutional complaint with the Federal Constitutional Court, arguing that
this legislation breached their right under the Basic Law to form associations to safeguard and
improve working and economic conditions.
In a judgment of 11 July 2017 the Constitutional Court essentially dismissed the first and second
applicant trade unions’ complaints, finding that the interference with their rights had for the most
part been justified. In particular, the interference aimed to safeguard the system of autonomous
collective bargaining (Tarifautonomie) and to encourage trade unions to cooperate (notably by
avoiding the negotiation of different collective agreements for employees in similar positions).
Referring to this leading judgment, the court subsequently declined to consider the other applicants’
constitutional complaints.
THE DECISION OF THE COURT…
The Court reiterated that the right to collective bargaining as guaranteed under Article 11 of the
Convention did not include a “right” to a collective agreement. What was essential was that trade
unions could make representations to and be heard by employers.
It observed that the main restriction brought about by the legislation in issue in this case had
concerned the rights of trade unions which had fewer members within the “business unit” of the
company concerned.
Those minority trade unions did not lose the right as such to bargain collectively and to take
industrial action if necessary. They also retained considerable other rights: they were entitled to
adopt the majority union’s collective agreement and could present claims and make representations
to employers for the protection of their members.
Most importantly, the legislation was intended to ensure the fair and proper functioning of the
system of collective bargaining, notably by preventing trade unions representing employees in key
positions from negotiating collective agreements separately to the detriment of other employees,
and also to facilitate an overall compromise.
Indeed, several other States also had systems restricting in one way or another collective
agreements to larger or more representative unions.
The respondent State was, moreover, to be given leeway as regards the restriction on trade union
freedom in this case, and all the more so given the sensitive policy choices s involved in balancing the
respective interests of labour – including trade unions – and management.
The Court concluded that there had been no disproportionate restriction on the applicants’ rights
and that there had therefore been no violation of Article 11 of the Convention.
Separate opinion
Judges Serghides and Zünd expressed a joint dissenting opinion. This opinion is annexed to the
judgment.
