German teachers take legal action for full collective rights

Abstract

In December 2018, eleven German teachers began their appeal to the European Court of Human Rights in Strasbourg, supported by the German teachers’ union GEW (Gewerkschaft Erziehung und Wissenschaft). The reason is the strike ban for civil servants in Germany, which was confirmed by the German Constitutional Court on 12 June 2018 . Roughly one third of all civil servants in Germany are teachers. More than 80 percent of teachers in public schools are employed as civil servants; the remainder are employed on fixed term or permanent working contracts. The teachers appealing the Constitutional Court ruling are working as civil servants in several of the German federal states. They have participated in strike actions organised by GEW, which were aimed at achieving higher wages or a reduction in teaching hours. As a consequence of their participation, they faced disciplinary measures for unauthorised absence, ranging from reprimands (with possible negative impact with regard to promotions) to monetary penalties. The German strike ban for civil servants is not explicitly mentioned in the German constitution, the ‘Grundgesetz’. Instead, the constitution refers to a formulation known as ‘Hergebrachte Grundsätze des Berufsbeamtentums’, which refers to the traditional principles of the civil servant status that date back to the nineteenth century and the Weimar Republic (1918–1933). The interpretation of these principles is basically case law. The principles encompass a duty of allegiance on the part of the civil servant, meaning obedience to the law and loyalty to the employer. The employer in return is said to have a fiduciary duty to remunerate his civil servants in a decent way according to the dignity of the respective position. Succinctly put, this conception means that civil servants are allowed to neither strike nor do they have the necessity to strike. GEW as a union has repudiated this total strike ban for decades, in line with the other unions organised in the national umbrella organisation, Deutscher Gewerkschaftsbund (DGB). In this, the unions do not stand alone. The International Labour Organisation and other international organisations constantly criticise the German legal framework withholding civil servant’s collective rights and have repeatedly requested the German Government to revise this violation of basic human and workers’ rights. Now and then, GEW members have nevertheless taken part in strike actions, tacitly or proudly accepting the collateral disciplinary measures, since the jurisprudence of German courts seemed to be totally static. This changed after the rulings of the European Court of Human Rights in the cases of Demir1 and Baycara2 and Yapi-Yol Sen3. The Court asserted that restrictions on the rights of collective bargaining and to strike should be exercised as narrowly as possible. Remaining restrictions must be justified by the function the respective person is fulfilling, being limited to sovereign responsibilities of public administration. The legal employment status is not a sufficient justification to deny basic human rights. GEW saw this as recognition of its own legal arguments. Therefore from 2009 onwards, the union has supported numerous lawsuits of members who were disciplined after taking part in GEW strike actions. Several levels of jurisdiction found diverging answers to the question of how to reconcile the conflicting outcomes of traditional German civil servant law on the one hand, and international labour law and human rights on the other. As these cases reached the German Constitutional Court in 2018, the total strike ban for civil servants was affirmed all along the line, referring to the above mentioned principles of German civil servant law being an indivisible set of rights and obligations. The judges refuted any contradiction between the rulings of the European Court of Human Rights and German jurisprudence. Since European human rights law had been at the centre of its cause of action in these cases, GEW motivated the eleven teachers to bring their cases to the European Court of Human Rights in Strasbourg. They will be advocated by the union-based lawyers, Gewerkschaftliches Zentrum für Revision und Europäisches Recht der DGB Rechtsschutz GmbH. Notes 1 2 BvR 1738/12, 2 BvR 1395/13, 2 BvR 1068/14, 2 BvR 646/15 2 Demir and Baykara v Turkey [2008] ECHR 1345 3 Enerji Yapi-Yol Sen v Turkey [2009] ECHR 2251 20...