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CHAPTER 14
The Right to Strike in the Public Sector: A Catch 22 between Fundamental
Right and Fundamental Prohibition : – The Cases of Denmark and
Germany with Some Comparative Belgian and Dutch Elements
Alexander De BeckerThis contribution grants an overview of the divergent evolutions with regard to the right to strike in
the public sector in international treaty law. The evolution in this branch seems to be that the right
to strike has become a fundamental right which has to be respected. It appears that the element
whether it concerns a worker in the public sector or not does not play a role. However, most of the
continental countries originally knew a prohibition for public servants to strike. Many European
continental countries (such as Belgium and the Netherlands) have now recognizsed the right to
strike in internal regulation. Germany and Denmark remain exceptions to this evolution. This article
chapter tries to analyse those legal elements with regard to their national and international
regulation. Do the prohibitions still stand or are they difficult to maintain?
1.§14.01 What Is the Exact Meaning of “‘the Rright to sStrike for cCivil
sServants”’ in Historical Perspective?
1.1.[A] Introduction
This paper chapter shall only deal with the right to strike of the civil servants in the narrow sense of
the word. It does not concern the right to strike of specific groups of civil servants, such as police
officers and military staff.1 They mainly are submitted to a deriving system. This counts for every
country concerned in this articlechapter.
The focus of this paper chapter is limited to the civil servants employed in the actual services of
the administration, the ministries and/or the agencies.
1?. Military staff also is prohibited to strike in Belgium and the Netherlands. Article 12i of the Military Civil Service Act of 1931 in the Netherlands prohibits the Dutch military staff to strike; Articlearticle 175 of the Belgian Act of 28 February 2007 on the status of the active military staff prohibits military staff to strike in Belgium. The right to strike for Belgian police officers is very restricted according to Articlearticle 126 of the Act on 7 December 1998 on the Police while the right to strike for Dutch police officers is not statutory limited. Read on this topic for a Dutch perspective the interesting recent following case: Court The Hague, 22 September 2015, NJF, 2015, 483 and the analysis of Natschja Hummel: N. HUMMEL, “‘Het staken van het overleg als stakingsoverleg voor militairen”’, ARBAC, August 2014, to be consulted on www.arbac.nl. It is obvious that German and Danish police and military staff even so are not allowed to strike.
2.§14.02 A Prohibition to Strike -: The Original Administrative Law
Approach
The evolution of the legal status of civil servants needs to be understood in the broader evolution of
the legal framework of the German and French regions in the late eighteenth and the beginning of
the nineteenth century.
Austrian and Bavarian rulers introduced to the ideas that civil servants had to be loyal to the
Emperor/King while the Emperor/King protected them by granting a lifelong employment security.2
The duty of loyalty included a prohibition to strike. These ideas influenced the German civil service
as the Bundesbeamtengesetz of 1873 proves. It should be noted that these ideas spread later out over
Northern Europe and that countries as Denmark and the Netherlands in the beginning of the
twentieth century were influenced by the ideas of German civil service law.3
The French concept of civil servants, which largely influenced the Belgian concept of civil
service, was set up in the Napoleons era. Napoleon’s main aim was to set up an important and
strong administration where, once again, loyalty to the Emperor and his delegates constituted a key
element. As in Austria and Bavaria, a unilateral lifelong appointment was countervailed by the
demand of loyalty of civil servants. Civil servants were the bearers of public authority and had to be
identified with it. They therefore had to obey to the hierarchy and to stay loyal to it. It seemed
therefore unsuitable to grant them any right to strike.4
These French ideas influenced the Belgian perspective on Civil Service Law.5 At the moment of
enacting a Decree with regard to the status of civil servants (in 1937), the prohibition to strike was
not explicitly mentioned in the regulation but it was generally understood that no right to strike
existed for the civil servants.6
It has become clear that the historical background of the prohibition of the right to strike has
always been linked to the specific duty of loyalty of a civil servant. Until the middle of the
twentieth century, judges in all four countries studied were univocal in their case law dealing with
strikes of civil servants. Strikes in the public sector were considered to be illegal.7 Civil servants
2?. H. HATTENHAUER, Geschichte des Beamtentums, Köln, Heymann, 1980, 179.3?. Compare the influence of the German ideas, as stated in the work of Krabbe and Fokker, 1898 in the Netherlands with the ideas of Poul Andersen in Denmark in 1926. Read E. FOKKER and H. KRABBE, “‘Welke is den aard van de rechtsverhouding van den staat tot zijn ambtenaren? Moet zij wettelijk worden geregeld en zoo ja, hoe?”’, Handelingen van de Nederlandse Juristenvereniging, 1898 and P. ANDERSEN, “‘Kontrakt eller fovaltningsakt?”’, Nodisk Administrativt Tidskrift, 1926, 3. All authors based their thoughts on original German ideas. It may not be a surprise that the prohibition to strike was introduced in the Dutch and the Danish legislation.4?. M. HAURIOU, Précis de droit administratif et de droit public, Paris, Dalloz, 1900, 2-3.5?. Read on this topic A. DE BECKER, De overheid en haar personeel, Bruges, die Keure, 2007, 39.6?. L. CAMU, Rechtstoestand van het Rijkspersoneel, Brussels, IMIFI, 1937, 121.7?. L.P. SUETENS, De werkstaking in het publiekrecht van de landen van de Europese Gemeenschappen, Bruges, die Keure, 1963.
participating in strikes were at least disciplinary sanctioned and could even be sanctioned on basis
of criminal legislation.8
3.§14.03 The Growing Role of Collective Negotiations
Although the right to strike was not recognised, the growing role of freedom of association (which
led to the appearance of trade unions in the public sector and to their formal participation in
negotiation processes in each country studied) made that civil servants were more and more
considered as a collective group of workers where a role has to be played by their trade unions.9 A
growing convergence between the public and the private sector took place. The legal perspective
slowly shifted its focus from a mainly individual serving role of the civil servants towards a
collective group of workers exercising their tasks for an employer in the public sector. Furthermore,
the central administration grew in the different countries studied during the period of
industrialisation.10
The shift mainly happened in the interbellum. In Germany, trade unions played a role in
negotiations since 1922 within the framework of the Weimarrepublik.11 In Denmark, trade unions
were formed at the end of the nineteenth and the beginning of the twentieth century.12 As a
consequence, the Danish Civil Service Acts of 1919 and 1927 provided the possibility to enter into
collective negotiations with representative trade unions over non-technical issues.13 Belgium
enacted regulation on the duty to negotiate with trade unions for the first time in 192214 while the
Netherlands introduced similar regulations in the interbellum.15
The debate on the role of the right to strike thus started as a sequel of the appearance and the
development of trade unions in the different countries studied. However, as said, although
regulations with regard to collective negotiations in the public sector were enacted, the interbellum
have not yet provided a foundation for a right to strike or even a breakthrough for the principle
recognition of the right to strike in the public sector.
8?. Act of 9 April 1903 in the Netherlands (Articlearticles 358bis, ter and quarter of the Penal Code); After a period of the recognition of a legal character of strikes in the public sector, the Act of 1 February 1922 forbid the civil servants to strike. Even if it had a temporary character (till 9 February 1922), it implied an important U-turn in German legal thinking concerning this topic (read M. KITTNER, Arbeitskamp – Geschichte – Recht – Gegenward, München, 2005, 445). In Belgium and Denmark there never existed a real penal sanction for civil servants participating in a strike. No real legal prohibition has even existed. However, it could lead to disciplinary sanctions. Read on this topic J. GHIJSELS, “‘Stakingsrecht in overheidsdiensten en het kontinuïteitsbeginsel”’ in M. VAN HOECKE (ed.), Algemene rechtsbeginselen, Antwerp, Maklu, 1991, 305 and F. HIOTHOY, Rettsforholdet mellom staten og dens tjenstemenn, Oslo, 1920, 21.9?. R. ANDERSEN and P. HARMEL, “‘La liberté d’association et la function publique”’, Ann. Dr., 1980, 249.10?. Read on this topic A. DE BECKER, De overheid en haar personeel, Bruges, die Keure, 2007, and H. PETERSEN, “‘Oversigt over centraladministrations udvikling siden 1848”’, Betaenking 1962, 39-41.11?. J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 15-16.12?. H. PETERSEN, Ledelse og loyalitet, Kopenhagen, Akademisk Forlag, 1987, 17.13?. J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 15-16.14?. R. ANDERSEN and P. HARMEL, “‘La liberté d’association et la function publique”’, Ann. Dr., 1980, 249.15?. M. G. ROOD, Collectief ambtenarenrecht, The Hague, VUGA, 1989, 155.
4.§14.04 The Slow Recognition of a Right to Strike in Belgium and the
Netherlands: The Role of Article 6.4. European Social Charter
The evolution of employment and labour relations in the public sector was hardly hit by the Second
World War.
Mainly for the German civil service has the end of the Second World War to be quoted as a
crucial period for the German civil service. A hard and long debate on the existence of a status for
civil servants took place. While some Northern German states defended the point of view that a
status was no longer desirable, some Southern German states supported the opinion that a status
should remain. The final outcome in the wording of the Article 33 of the German Basic Law
included a compromise where professional civil servants with a status were combined with persons
employed with contracts of employment. The civil servants with a status, who are employed based
upon an unilateral appointment, are those persons exercising a part of public powers according to
Article 33 IV of the Constitution.16 The duty of loyalty has remained crucial and the link between
the duty of loyalty (in Article 2 of the Bundesbeamtengesetz) and the prohibition to strike was and
still is established by the case law of the Bundesverfassungsgericht.17 However, the duty of loyal is
founded in Article 33 V of the Basic law which does not only concern civil servants exercising a
part of public authority (as provided in Article 33 IV) but all civil servants in general. Besides this
group of civil servants exists a large group of people employed with contracts of employment in the
public sector.18 The German public sector has known ever since a combination of both forms of
employment.
The evolution in the Danish public was not so strongly influenced by the Second World War in
Germany. The growth of the number of employees with a contract of employment fundamentally
influenced the evolution. It led to collective agreements, first between local entities and local trade
unions (from the forties on) and later between the Ministry of Finance and national trade unions
(from the fifties on).19 Eventually, the Danish Civil Service Act provided in 1969 in aArticles 45
and 54 that binding collective negotiations on wage and working conditions were to be introduced
in the public sector. The binding character of collective agreements exists on an equal basis for the
public employees (with a contract of employment) as for civil servants (with a status).20 Paragraph
27 of the Danish Constitution though still provides that regulation with regard to the appointment,
the unilateral variation of working conditions, the dismissal and the pension of civil servants have to
16?. U. BATTIS, Bundesbeamtengesetz: Kommentar, München, Verlag Beck, 2004, 64-65.17?. U. BATTIS, Bundesbeamtengesetz: Kommentar, München, Verlag Beck, 2004, 90-91.18?. F. WAGNER and S. LEPPER, Beamtenrecht, Heidelberg, Müller, 2009, 17-18.19?. J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 15-16.20?. Read for an anaysis O. EMBORG and P. SCHAUMBURG-MUELLER, Offentlig arbejdsret, Kopenhagen, Gadjura, 1998, 54-55.
be enacted by Act of Parliament. As a consequence, a constitutional obligation for Parliament to
intervene exists. The intervention in the current Civil Service Act has led to the recognition of the
possibility to sign binding collective agreements concerning the wage and employment conditions
in aArticle 45 of the current Civil Service Act of 6 May 2010. To comprehend the non-recognition
of the right to strike and the prohibition of the possibility for the employer to lock out, one should
quote aArticle 46 of the Civil Service Act. This latest article provides that in case that no agreement
can be reached, the Ministry of Finance shall take a unilaterally initiative to write a bill for
Parliament.21 Given the possibility to intervene unilaterally still exists, the right to strike and the
possibility for the employer to lock out are not recognised. The outcome of potential conflict
inevitably leads to a unilateral initiative by the government to Parliament. It should therefore be
noted that although binding collective negotiations really exist for all persons employed in the
public sector, the introduction of those binding collective agreements in the public sector have not
yet led to the recognition of the right to strike for civil servants in the Danish public sector.
Furthermore, the same reasoning as in Germany has been established, namely that the duty to be
loyal still includes a strict prohibition for civil servants to strike.22 Binding collective agreements in
the public sector have apparently not changed the original impact of the duty of loyalty towards
unilateral decisions.
The German and Danish evolutions after the Second World War (although important steps were
set to transform the labour relations in the public sector based on the model of the private sector)
did not lead to a recognition of the right to strike for civil servants.
The German and Danish evolutions differ fundamentally from those in Belgium and the
Netherlands.
In Belgium, the case law of the Council of State smoothly swept from a prohibition to strike
which might automatically lead to disciplinary sanctions23 to the recognition of a fundamental right
which should not be abused.24 Abuses of the exercise of the right to strike may still lead to
disciplinary sanctions but the Council of State has since the sixties always judged that a basic right
to participate in strikes for civil servants exists.25 The basic right to strike for civil servants was
recognised in the late sixties and potential disciplinary sanctions have since this turning point in the
21?. J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 45.22?. J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 99.23?. Read e.g., CoS, Magrez, nr. 8913, 3 November 1961 where a disciplinary sanction was considered to be legal just because the participation in the strike has led to a suspension of the execution of the tasks of the public service.24?. The turning point can be found in a decision of the Council of State in 1964: CoS, Steyls and Dudicq, nr. 10.392 where the Coucnil Council of State decided that the only consequence of a participation in a strike can be the refusal to pay a wage for the non-delivered performancesprestations. Read on this topic D. BATSELE, O. DAURMONT and P. QUERTAINMONT, Contentieux de function publique, Brussels, Bruylant, 1992, 261.25?. B. LOMBAERT, “‘La grève des fonctionnaires ou la lente émergence d’un droit fundamental’ » in X (ed.), Mélanges offertes à Pierre Lambert, Brussels, Bruylant, 2000, 517-540. Compare the
case law to be based on clear abuses during the exercise of this fundamental right. The recognition
of the right to strike for civil servants was, though, not founded on a hard law basis.
With regard to case law in the Netherlands, the principle decision was taken by the Supreme
Court after a longstanding strike of civil servants in the eighties. The right to strike had no legal
foundation but the Netherlands had ratified the European Social Charter (hereafter also ESC) in
1965. Article 6.4. of the European Social Charter provides that the Member States recognise the
right to strike and had to work out its conditions in regulation.26 Although the Netherlands had
made a reservation with regard to the public sector in order to leave Parliament the discretionary
power to enact legislation on this topic, the Dutch Supreme Court judged that the wordings of
aArticle 6.4. of the European Social Charter were clear enough to be directly applicable in the
Dutch legal order. It should be noted that Dutch Parliament had, between the ratification in 1980
and the decision of the Supreme Court in 1986, not yet acted within a six years framework. There
exist no Act dealing with the limitations of the right to strike for civil servants.27
According to the Dutch Supreme Court, aArticle 6.4. ESC has, due to its clearness, a binding
character. Therefore, it allowed civil servants employed by the Dutch railways to execute their right
to strike. The reasoning of the Dutch Railways that the provision was not intended to be directly
applied was not considered correct by the Dutch Supreme Court. The Court judged that neither from
the Treaty itself nor from the preparatory documents can it be deduced that the signing parties had
no the the intention not to grant direct application to aArticle 6.4. ESC. Therefore, it should be
analysed to what extent an intervention of Dutch Parliament was necessary. This provision was only
needed in case the provision is not clear enough to be used as law in the Dutch legal order.
According to the Dutch Supreme Court, aArticle 6.4. ESC is clear enough elaborated to allow direct
application within the Dutch legal order.28 It seems that the Dutch Supreme Court also decided that
26?. Article 6 of the European Social Charter provides the following:
With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:
1. to promote joint consultation between workers and employers;2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’' organisations and workers’' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise:4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.
27?. Initiatives had been undertaken by the Den Uyl Government in the early eighties. Read on this topic: L.C.J. SPRENGERS, ‘“Slechts een beetje staken mag?”’, NJCM-Bulletin, 2004, 663.28?. Dutch Supreme Court, 30 May 1986, NJ 1986, 688.
time for Parliament to handle the issue had passed out and that judges could grant the boundaries in
their case law.29
The legal importance of this decision may not be underestimated. It influenced the existing
Belgian case law of the Council of State (the highest Administrative Court) which decided in 1995
(based upon the Dutch example) that aArticle 6.4. ESC had to be directly applied in litigations
opposing a civil servant to its employer and that therefore disciplinary sanctions could only be
infringed if civil servants had abused their right to strike.30 This case law did not fundamentally
differ from previous decisions, as mentioned, but it was the first time that a hard law regulatory
fundamental was provided by the Belgian Council of State.
It may be important to note that the role of aArticle 6.4. of the European Social Charter, which
was of major importance for the recognition of a fundamental right to strike for civil servants in the
Netherlands and Belgium, still remains non-existent in Germany and Denmark. Both countries
however ratified the European Social Charter, Germany on the 27 January 1965 and Denmark on 3
March 1965. Both countries still deny direct application to aArticle 6.4. ESC. The reasoning in
these last two countries is based on the idea that it was not the intention of the signing parties to
grant to any provision of the ESC direct application. Although this interpretation stands at odds with
the interpretation of the Highest Courts in the Netherlands and Belgium, it can still be maintained
given the debatable role of the Part III and IV of the ESC.31 The Danish interpretation is in line with
the German interpretation, namely that the European Social Charter only contains international
obligations for the signing parties to provide legislation which secures the obligations set forward in
the European Social Charter.32
German labour law scholars still defend the opinion that the whole European Social Charter
cannot have any direct application due to the character itself of the European Social Charter. Even if
Germany had ratified the European Social Charter earlier than the Netherlands and Belgium
(respectively in 1965 and 1990), it remains for German legal scholars a Treaty with indirect
provisions which have to be transposed into German law through legislation enacted by German
Parliament(s).33
Denmark ratified the European Social Charter in 1965. Even after this ratification, the prohibition
to strike for civil servants remained unchanged. The link between the duty of loyalty and the
29?. A. JASPERS, Nederlands stakingsrecht op een nieuw spoor?, Deventer, Kluwer, 2004, 167p.30?. CoS, Henry, 22 March 1995, nr. 52.424, APT 1995, 228; Soc. Kron., 1996, 442 with note J. JACQMAIN; CoS, Vermote, 3 December 2002, nr. 113.618, NjW 2003 note MDV. Read also B. LOMBAERT, Le droit de grève ou la lente émergence d’un droit fundamental’ » in X (ed.), Mélanges offertes à Pierre Lambert, Brussels, Bruylant, 1996, 517-540.31?. Bundesverwaltungsgericht, 22 February 1995 to be found on www.openjur.de.32?. H. OTTO, Einführung in das Arbeitsrecht, Berlin, Walter de Gruyter, 1997, 263;.33?. W. ZOELLNER and K.-G. LORITZ, Arbeitsrecht, Münche, Beck, 1992, 112; H. OTTO, Einführung in das Arbeitsrecht, Berlin, Walter de Gruyter, 1997, 263; C. SCHMIDT, Rechtnatur und Verpflichtungsdichte der Europäischen Grundrechte, München, Herbertz, 2012, 256-257.
prohibition to strike still remained. No hard law regulation deals with the issue but the case law of
the Civil Service Courts leaves no room for interpretation. It is forbidden for the civil servants (with
a status) to strike.34
Question may rise to what extent it currently can still be defended that the prohibition of the right
to strike complies with aArticle 6.4. ESC. The European Committee on Social Rights within the
framework of the Council of Europe recently reiterated its earlier reports that the denial of the right
to strike to civil servants in Denmark was and is in breach of Articlearticle 6.4. of the European
Social Charter. Even if it might be true that the number of civil servants was significantly reduced
in the recent past and shall continue to reduce in the future, the general denial of the right to strike
to civil servants is considered to be a violation of the Articlearticle 6.4. ESH.35 A similar report was
granted for Germany although the report indicated that the German Basic Law (Articlearticle 33,
paragraph 5) grounded an acceptable prohibition for those civil servants exercising a part of public
authority. A restriction of the other civil servants might be made possible by enacting legislation,
however a ban is not appropriate.36
The report summarizses the current evolution in the German case law. Some German
Administrative Courts had rendered divergent decisions. The decisions however never based
themselves upon the direct application of Articlearticle 6.4. ESC. They always indicated
Articlearticle 11 European Convention on Human Rights (hereafter also ECHR).
German and Danish judges apply Articlearticle 6.4. ESC in a different manner than Belgian and
Dutch judges. For these last judges, Articlearticle 6.4. ESC is sufficient to guarantee a fundamental
right to strike in the public sector. For German and Danish judges, the legal foundation cannot be
found in Articlearticle 6.4.ESC. The evolutions in the case law of the European Court of Human
Rights (hereafter also ECtHR) might have a different impact. The application of Articlearticle 11
ECHR is uniformly guaranteed by the jurisprudence of the European Court of Human Rights
(hereafter also ECtHR).
5.§14.05 Evolution of the Jurisprudence of the ECtHR
Most of the legal commenters on the topic indicate the cases Demir and Baykara and Enerji Yapi
Yol Sen as crucial for the debate on the right to strike for civil servants. However, it should not be
fotgottenforgotten that shortly before the Demir and Baykara-case, the ECtHR has judged over the
applicability of Articlearticle 6.1. ECHR to litigations opposing civil servants to their public sector
34?. Tjenestemandsretten, FT 1980-81, A 3513, 4778. Read also J. MATHIASSEN, Forvaltningspersonellet, Kopenhagen, DJOEF, 2000, 45.35?. European Committee of Social Rights, Conclusions XX-3, January 2015, Denmark, 19-20 to be found on www.coe.int.36?. European Committee of Social Rights, Conclusions XX-3, January 2015, Germany, 25-26 to be found on www.coe.int.
employer. The ECtHR had made the following consideration in its case law. It decided that these
disputes do not differ from ordinary labour disputes in the view of the Court.37 The exceptions are
twofold: (1) the non-application of Articlearticle 6.1. ECHR (right of access to a judge) needs to be
provided by national law and (2) the exemption is justified by the special nature of the relationship
between the State and its civil servants concerned.
These considerations indicate the view of the Court that civil servants need to be considered as
normal employees upon whom the same principles and the same rights need to be applied as in
labour law cases.38 It therefore seems logical that the ECtHR does not have a fundamentally
different approach towards the application of the right to strike (as a consequence of the freedom of
association) in the public sector when compared to the private sector. In the case of Demir and
Baykara, the ECtHR decided that a general principle of collective negotiations needs to be
respected in the private and the public sector. Potential exceptions, based upon the exercise of
public authority may be created by law but civil servants not participating in these tasks cannot be
withdrawn from their right to act and negotiate collectively.39 The ECtHR decided that exceptions
could only be made for a very specific group of civil servants but that a general derogation for civil
servants does not fulfil the demanded exceptional character.40
In the Enerji Yapi Yol Sen case (as the Demir and Baykarla-case against Turkey), the ECtHR
went even a step further. It explicitly decided that the right to freedom of association includes the
right to strike. However, the right to strike is not absolute. The exercise can be limited and
submitted to specific conditions. It is therefore plausible to deny the right to strike to those civil
servants exercising a part of public authority. However, each exception needs to be clarified and
needs to be as narrow as possible as it concerns a limitation of a basic right.41
§14.06.6 The Impact of the Case Law of the ECtHR on Germany and
Denmark
As German legal scholarship has already indicated, the general exception for the German civil
servants violates Articlearticle 11 ECHR, as applied by the ECtHR in the Enerji Yapi Yol Sen-
case.42 Neither Germany nor Denmark are directly bound by the decision in the case Enerji Yapi Yol
Sen v. Turkey but the outcome is clear. The current interpretation of Articlearticle 11 ECHR does
not allow a full-fledged prohibition for all German or Danish civil servants. However, a major
distinction needs to be made between both countries. Where the number of German civil servants
37?. ECtHR, Vilho Eskelinen a.o. vs. Finland, 19 April 2007 to be found on www.coe.int.38?. This explicitly is mentioned in the case Vilho Eskelinen a.o. vs. Finland, paragraph 66.39?. ECtHR, Demir and Baykarla vs. Turkey, 12 November 2008 to be found on www.coe.int.40?. ECtHR, Demir and Baykarla vs. Turkey, 12 November 2008 to be found on www.coe.int.41?. ECtHR, Enerji Yapi Yol Sen vs. Turkey, 21 April 2009 to be found on www.coe.int.42?. U. WIDMAIER and S. ALBER, “‘Menschenrecht auf streik für Deutsche beambte”’, ZEuS, 2012, 391.
remains rather high and includes a large group of persons people not exercising a part of public
authority, this does not entirely count for Denmark where the number of civil servants has been
significantly reduced in the last decades.43 Since 1 January 2001, as a consequence of the enactment
of the circular of 11 December 2000 on the use of civil servants by the State and the Church, it has
been made clear that the aim was to grant only those civil servants a status who are really exercising
public authority.44 Although this evolution cannot be denied, there currently still exists an important
number of civil servants who do not exercise a part of public authority. Paragraph 4 of the Circular
namely provides that those civil servants who had been appointed with a status, keep this status for
the future. This group of people still is denied the right to strike. Therefore, the right to strike
remains unlawfully hampered under the current Danish law. The current importance of the
disctinction can best be illustrated with the story of the teacher’s lock out. In 2013, the Danish State
locked teachers, employed with contracts of employment in state schools out. The teachers who had
been granted a status (the civil servants) could not be locked out given that their status could
eventually be governed by unilateral governmental initiatives.45 Therefore, those teachers were not
involved in the lock out since the outcome of collective conflict his regulated by Articlearticle 46 of
the Civil Service Act, which has been made applicable to the civil servants in public schools since
1992. Furthermore, they do not possess a right to strike and had therefore to continue teaching the
pupils. The conflict was in fine resolved with a statutory intervention of Parliament after 25twenty-
five days.
The debate in both countries tends to differ quite significantly. German jurisprudence and legal
scholarship is very well aware of the significant impact of the case law of the ECHR on the right to
strike in the public sector.46 The rather recent decision of the German Highest Administrative Court
indicates the awareness of the current legal problem very clearly. In Denmark the prohibition to
strike for civil servants has not yet become a very dominant legal problem. Case law does not seem
to have initiated a large debate on the topic even if some current strikes in the large public sector are
taking place in Denmark.
43?. J. KRISTIANSEN, “‘Kommentarer til § 27”’ in H. ZAHLE (ed.), Grundloven: Danmarks riges grundloven med kommentarer, Kopenhagen, DJOEF, 2006, 242.44?. Cirkulære af 11 December 2000 om anvendelse af tjenestemandsansættelse i staten og folkekirken to be found on www.retsinformation.dk. The circular indicates that only those persons exercising important tasks in the judiciary power (the Prosecutor Offices, etc), the police, the army and tax inspectors should be granted a specific status. This led to the reduction of the number of civil servants with a status from 44% in 2000 till 26% in 2010 (figures provided by Moderniseringsstyrelsen a department in the Ministry of Finance). These figures can found in the report ”‘Ansaettelse i staten”’ from 15 November 2011, 15. It can checked on http://hr.modst.dk.45?. Read on this topic J.J. GARNAK, “‘Laerer: jJeg vil onske at jar var lockoutet”’, http://www.netavisen.dk, published on 8 April 2013.46?. Read on this topic e.g., M. NIEDOBITEK, “‘Denationalisierung des Streiksrechts – auch für Beambte. Tendezen im europaüischen und im intenationalen Recht”’, ZBR, 2010, 361; U. BATTIS, “‘Streikrecht für Beambte”’, ZBR, 2011, 398; J. KUTZKI, “‘Beambte und Streikrecht – eine Aktuelle Bestandsaufname”’, DöD, 2011, 169; F. BOHM, “‘Abschied von Streikverbot in Beamtenrecht”’, PersV, 2012, 164; C. SCHUBERT, “‘Das Streikverbot für Beamte und das Streikrecht aus artikel 11 EMRK im Konflikt”’, AöR, 2012, 93; U. WIDMAIER and S. ALBER, “‘Menschenrecht auf streik für Deutsche beambte”’, ZEuS, 2012, 387.
Even if the Danish legal world does not seem to worry about the impact of the recent decisions, it
remains very doubtful to what extent the prohibition to strike for Danish civil servants may be
considered lawful with regard to the current case law of the ECtHR. Danish law at it stands seems
to violate Articlearticle 11 ECHR as interpreted and applied by the ECtHR (as also was indicated by
the European Social Rights Committee in 2014). Therefore, a similar debate as in Germany seems
absolutely necessary. It should be mentioned that the Danish Labour Courts are aware of the impact
of the decision of the ECtHR in the Enerji Yapi Yol Sen-case. In the recent decision on the
lawfulness of strike of the Danish pilots and cabin crew employed by Ryanair at the airports of
Copenhagen and Billund, the Danish Labour Court referred to the Enerji Yapi Yol Sen-case
mentioning explicitly that the right to strike also counts for civil servants. This strike was
considered not to violate Danish and EU-law as the aim was to grant the possibility to enter into
negotiations on the working and wage conditions of the Danish pilots and cabin crew working for
Ryanair at the Danish airports.47 However, the case obviously did not concern a strike of civil
servants.
In Germany, the evolution has a different tendency. The Administrative Court of Düsseldorf had
decided that the recent developments in the case law of the European Court of Human Rights
(hereafter also ECtHR) implied that a participation of a school teacher (as a civil servant) in a strike
could not lead to disciplinary measures without violation of Articlearticle 11 ECHR. Even if the
denial of the right to strike to those civil servants who exercise public authority may be lawful, the
case law of the ECtHR does not allow a disciplinary procedure for participation in a strike anymore
for civil servants not exercising a part of public authority.48 The Administrative Court in Kassel
came to a similar conclusion by deciding that disciplinary sanctions for civil servants participating
in a strike after the decisions of the ECtHR were no longer valid unless it concerned civil servants
exercising a part of public authority.49
Other voices also appeared in the debate. The Administrative Court of Osnabrück decided on 19
August 2011 that the distinction between the civil servants exercising a part of public authority and
the other civil servants was not tenable. The Administrative Court in Osnabrück judged that
Articlearticle 33, paragraph 5 of the German Basic Law provides a sufficient ground for a
prohibition of the right to strike for civil servants under German law.50
The higher Administrative Courts tend to decide in favour of the principal prohibition of the right
to strike. Article 33, paragraph 5 of the German Basic law does not provide any distinction between
civil servants. Based on that reasoning, the Higher Administrative Court of Münster overruled the
47?. Arbejdsretten, AR 2015.0083, 1 July 2015 to be found www.arbejdsretten.dk.48?. Verwaltungsgericht Düsseldorf, 15 December 2010, AZ 31 K 3904/10.0 to be found on www.openjur.de.49?. Verwaltungsgericht Kassel, 27 June 2011, PersR, 2011, 472.50?. Verwaltungsgericht Osnabrück, 19 August 2011, AZ 9 A 1/11, 9 A 2/11 to be found on www.dbb.de.
decision of the Administrative Court of Düsseldorf.51 The crucial element for the Higher
Administrative Court was that the term “‘fonctionnaire”’ as used by the ECtHR only covered the
civil servants exercising a part of public authority and not any civil servants not participating in the
exercise of this task.52 The argumentation of the Higher Administrative Court is very doubtful as the
category of fonctionnaires in France (as in Belgium) covers the large majority of people employed
in the public sector. This category obviously includes persons people not exercising a part of public
authority.53 However, a similar decision as the one in Münster was made by the Higher
Administrative Court in Lower Saxony.54
The German Federal Administrative Court finally upheld the decision of the Higher
Administrative Court of Nordrhine-Westphalia (Münster) by deciding that the German Basic Law
does not provide a distinction between the civil servants exercising a part of public authority and
those who don’t. However, the federal Administrative Court recognised the issue and decided that
the German legislator has to enact legislation on this topic to find a solution of the clash between
the German Basic Law and the current interpretation of Articlearticle 11 ECHR by the ECtHR.55
Another important element concerns the number of civil servants. The Netherlands and Belgium
still know a principle statutory employment (employment with a status) for people employed in the
public sector56 while the German and Danish public sector know an important combination of both
forms of employment (status and contract). Specifically for the Danish situation counts that they are
aiming to reduce the number of civil servants to a limited number of functions including the
exercise of public authority.57 However, at this stage a larger number of civil servants are still
employed even if they do not all exercise typical authority functions. The same counts for Germany
where Articlearticle 33, paragraph 4 provides that civil servants need to occupy the functions
including the exercise of public authority. However, the number of civil servants is not limited to
this group, as it is well indicated in the decision of the Oberverwaltungsgericht of Nordrhine-
Westphalia of 7 March 2012.58
51?. Oberverwaltungsgericht Nordrhein-Westfalen, 7 March 2012, AZ 3d A 317/11.0 to be found www.openjur.de.52?. Oberverwaltungsgericht Nordrhein-Westfalen, 7 March 2012, AZ 3d A 317/11.0 to be found www.openjur.de.53?. U. WIDMAIER and S. ALBER, “‘Menschenrecht auf streik für Deutsche beambte”’, ZEuS, 2012, 399-400.54?. Oberverwaltungsgericht Lower Saxony, 12 June 2012, AZ 20 BD 7/11, 20 BD 8/11to be found on www.openjur.de.55?. Bundesverwaltungsgericht, 27 February 2014, BVerwG 2 C 1.13 to be found at http://www.bverwg.de/entscheidungen/entscheidung.php?ent=270214U2C1.13.0&add_az=2+C+1.13&add_datum=27.02.2014www.beverwg.de.56?. This should however be nuanced to the extent that Belgium knows a very large group of employees with contracts of employment in the public sector (read on this topic R. JANVIER and K. JANSSENS, De mythe van het statuut voorbij? De nieuwe overheidswerkenmer is opgestaan!, Bruges, die Keure, 2003, 8-9) while the Netherlands currently are reforming their principle form of employemetnt in the public sector from a status to a contract of employment. The bill has been adopted in the Second Chamber in 2014 and is since pending the First Chamber where a vote shall take place on 22 September. It is probable that the bill will pass. Read on this topic B. BARENTSEN, “‘The Wounded Soldiers of Bureaucracy”’, Leiden, Leiden University, 2012, 20.57?. J. KRISTIANSEN, “‘Notat om vilkarene for tjenestemaends arbejdsgivereskifte i forbindelse med kommunalreformen”’, 2005, 3-5 to be found on www.forhandlingsfaellesskabet.dk.58?. Oberverwaltungsgericht Nordrhein-Westfalen, 7 March 2012, AZ 3d A 317/11.0 to be found www.openjur.de.
The number of civil servants in Denmark is far more restricted than in Belgium, the Netherlands
and Germany. Teachers in public schools are in all these countries in principle employed with a
status. This is not the case in Denmark where most of the school teachers were affected by the lock
out due to the fact that they are considered to be employed with contracts of employment.59
7.§14.07 The Right to Strike and Its Restrictions in the Public Sector in
Belgium and the Netherlands
Even if in Belgium and the Netherlands there exists no doubt that civil servants are entitled to
strike, the content of this right often is affected by the case law of the Administrative Courts.
In Belgium, limitations to the freedom of expression (as a consequence of the case law of the
ECtHR) and to the freedom to participate in a strike are considered to be legal when the right to
strike is exercised with disregard to the collective duty in the public sector to announce a strike
beforehand. The Council of State recently decided that an individual participation in a strike which
was not previously announced by the trade unions could be disciplinary sanctioned as this limitation
to the exercise of the right to strike has been provided in regulation. Some civil servants of the
Belgian Railways had set up a spontaneous strike without prior notice of the trade unions.
The civil servants concerned were disciplinary sanctioned for their actions. The Council of State
(the highest Administrative Court) decided that a disciplinary sanction was appropriate because they
had denied the duty to announce the strike beforehand. This limitation of the exercise of the right to
strike may be considered in breach of the international duties where it is generally accepted to
consider the right to strike as an individual fundamental right.60 It is not up to trade unions to decide
when workers are entitled to exercise their individual right to strike. Even if this limitation was
foreseen by law, it does not seem to serve a legitimate aim as it derives civil servants from one of
their basic individual rights. The interpretation founds another problem as the limitation of a
fundamental right (even if considered to be provided by law) may not lead to requalify a
fundamental individual right to a fundamental collective right. The individual character of a
fundamental human right, even it needs to be exercised collectively, cannot be hampered by the
prior duty to announce a strike by a trade union. This namely makes the right to strike a specific
right of a trade union and no longer an individual right of an employee whether he works in the
private or the public sector. Limitations need to be linked to the specific character of the tasks
which some civil servants need to exercise.
59?. Arbejdsretten, AR 2013.0234, 28 June 2013 to be found www.arbejdsretten.dk.60?. CoS, Cuppens, 31 March 2014, nr. 226.973 and A. DE BECKER, “‘De impact van de rechtsmachtsverdeling tussen de Raad van State en de gewone (arbeids) rechtbanken bij geschillen inzake personele aangelegenehden”’, TSR 2015/1-2, 181-210 and F. DORSSEMONT, “‘La notion de réprésentativité dans le cadre de la loi du 19 décembre 1974 organisant les relations entre les autorités publiques et les syndicats des agents relevant ces autorités’ », TSR 2015/1-2, 291-316.
Similarly, the Dutch case law provides for trade unions the duty to announce their intention to
strike.61 This grants the State as employer the opportunity to check whether in last resort no
agreement can be found. Once again, the question rises to what extent such an announcement can be
kept in case the right to strike is considered an individual right for employees in the public and the
private sector. Even if it is linked to the freedom of association, it may not become the right of the
trade unions but it should remain the right of each employee, in the public and the private sector.
The consequence of the case law of the ECtHR for countries as Belgium and the Netherlands still
has to be clarified. To what extent is the duty to announce a strike beforehand by a trade union
reconcilable with the individual character of a fundamental right (even if it has to be exercised
collectively)? This query also remains for Belgian and Dutch civil servants.
8.§14.08 Conclusion
The recent case law of the ECtHR has large consequences for the prohibition to strike for civil
servants (in general) in Germany and Denmark. Germany needs to adapt its current legislation
(even its Constitution) with regard to the evolution in the case law of the ECtHR. A convention
conform interpretation of the Constitution needs to be elaborated. Therefore, different options can
be set forward. First, a modification of the Constitution can be set up but this may not be the most
desired option as the German civil service is by purpose constitutionally anchored.62 It may be more
useful to alter the existing legislation by indicating the group of civil servants exercising a part of
public authority for whom the derogation provided by the second paragraph of Articlearticle 11
ECHR will be made applicable. The Oberverwaltungsgericht decided in 2014 that intermediately
the current framework (which includes a general prohibition to strike for all civil servants) remains
fully applicable. Questions rise to what extent a potential case before the ECtHR would not hamper
this temporary solution. It is therefore under strict time pressure that this solution can be kept.
Denmark seems a more difficult pupil as no indications are granted to what extent the limitations
of the right to strike will be made clear. It is obvious that the continuous process of reduction of the
number of civil servants (as already had been indicated in the report of the European Social
Committee in 2014) may influence the scope of the exception but there still exist a number of civil
servants not exercising public authority. For this group, an adaptation of the current legislation or at
least of the current legal interpretation seems necessary. It includes e.g., the group of teachers in
public schools which were unilaterally appointed until the beginning of the nineties.
Both countries (Germany and Denmark) furthermore remain deaf for the impact of Articlearticle
6.4. ESC. The Dutch example may be quoted as the Dutch Supreme Court decided that
Articlearticle 6.4. ESC was directly applicable also due to the fact that Dutch Parliament had not yet 61?. A.P.C.M. JASPERS, Nederlands stakingsrecht op een nieuw spoor, Deventer, Kluwer, 2004, 85.62?. U. BATTIS, Bundesbeamtengesetz: Kommentar, München, Beck Verlag, 2004, 90-91.
limited the exercise of the right to strike in the public sector. However, the Dutch Minister had
indicated that Parliament would intervene in their reservation made at the moment of signing in
1961.63 Belgian case law followed the Dutch example in 1995 by directly applying Articlearticle
6.4. ESC in litigation opposing the State as employer to some civil servants. It remains legally
doubtful on which basis Germany and Denmark deny direct application to Articlearticle 6.4. ESC.
Germany and Denmark may be in legally troubled water with regard to this issue. However, it
should be underlined that even the full recognition of the right to strike does not fully guarantee the
correct individual exercise of that right. The case law of the Belgian Council of State that the
exercise of the right to strike can be submitted to a preliminary announcement by representative
trade unions makes the right to strike a privilege of the trade unions, which does not seem the aim
of the European Social Charter.64 Questions may rise to what extent the right to strike, as
incorporated in the freedom of association, does or does not have to be interpreted from an
individual angle. The same question rises in the Netherlands.
It thus becomes clear that in each of the countries researched the State as Employer still has
difficulties with the exercise of the right to strike in the public sector. The situation is the most
precarious in Denmark, followed by Germany. However, even in the two other countries studied
who recognised the right to strike in principle the correct application and limitation of this right
remains debatable.
63?. L.C.J. SPRENGERS, “‘Slechts een beetje staken mag?”’, NJCM-Bulletin, 2004, 663.64?. P. HUMBLET and R. JANVIER “‘De beperking van het stakingsrecht in de publieke sector”’ in P. HUMBLET and G. COX (eds.), Collectief arbeidsrecht, Mechelen, Kluwer, 2011, 345-363.