Available via license: CC BY 4.0
Content may be subject to copyright.
ARTICLE
The Ban on Strike Action by Career Civil Servants under
the German Basic Law: How the Federal Constitutional
Court Constitutionally Immunized the German Legal
Order Against the European Convention on Human
Rights
Matthias Jacobs*and Mehrdad Payandeh**
(Received 02 April 2019; accepted 26 June 2019)
Abstract
The Federal Constitutional Court has decided that the prohibition to strike for career civil servants, as it
has traditionally been part of the German legal order, is in compliance with the German Constitution.
The Court thereby put a (provisional) end to a long-lasting debate on how to solve the tension between
the fundamental freedom to form associations under Article 9(3) of the Basic Law, which arguably encom-
passes a right to strike, and Article 33(5) of the Basic Law, which protects the traditional principles of
the career civil servants, which arguably encompasses the prohibition to strike. Through recognizing that
the ban on strike action by career civil servants is not only allowed but required under the German
Constitution, the Constitutional Court navigates the German legal order on a potential collision course
with the European Convention on Human Rights and the European Court of Human Rights. In this
context, the Constitutional Court on the one hand reaffirms the openness of the German constitutional
order towards international law in general and human rights and the European Convention on Human
Rights in particular. On the other hand, the Court somehow marginalizes the role of the European Court of
Human Rights and threatens to not follow the Court should it hold that the European Convention on
Human Rights demands a right to strike also for career civil servants.
Keywords: Right to strike; career civil servants; European Convention on Human Rights; Federal Constitutional Court;
European Court of Human Rights
A. Introduction
On June 12, 2018, the Second Senate of the Federal Constitutional Court decided that the ban on
strike action by career civil servants was constitutional.1It thereby put a provisional end to a years-
long debate over the question of whether career civil servants have the right to strike. Within the
German legal order, such a right is traditionally not recognized. Although there is no explicit
prohibition for career civil servants to strike—at least not within Federal statutory law—such
*Mehrdad Payandeh is the Chair for International Law, European Law, and Public Law at Bucerius Law School in
Hamburg, Germany.
**Matthias Jacobs is the Chair for Civil Law, Labor Law, and Law of Civil Procedure at Bucerius Law School in Hamburg,
Germany
© The Author(s) 2020. Published by Cambridge University Press on behalf of the German Law Journal. This is an Open Access article,
distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unre-
stricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
1E.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 12, 2018, 2 BvR 1738/12 [hereinafter
Judgment of June 12, 2018].
German Law Journal (2020), 21, pp. 223–239
doi:10.1017/glj.2020.11
a right to strike is widely held to be incompatible with the traditional principles of the career civil
service system as they are constitutionally protected under Article 33(5) of the Basic Law:2As the
Constitutional Court reiterates these core structural principles to include the civil servants’duty of
loyalty, the principle of lifetime employment, the principle of alimentation, and the corresponding
principle that remuneration of civil servants must be determined unilaterally by law.3The basic
idea behind the ban on strike action is, therefore, that the civil servant, on the one hand, has par-
ticularly crucial functions to fulfill within the state that do not allow for her or him to strike, and
that, on the other hand, this constraint for the civil servants is compensated by rather far-reaching
obligations of the state to provide for its civil servants. The comprehensive strike ban is, however,
legally challenged from two different directions. First, under constitutional law, the question arises
whether the ban is compatible with the fundamental freedom to form associations under Article
9(3) of the Basic Law.4Second, with regard to international law, Article 11 of the European
Convention on Human Rights (ECHR) also recognizes the freedom of association with others,
including the right to form and to join trade unions.5Because the European Court of Human
Rights had recognized that civil servants also enjoy this right, the question of whether the
comprehensive strike ban under German law was compatible with the ECHR had been subject
to fierce debate at the forefront of the decision of the Constitutional Court. In its decision, the
Constitutional Court, however, rejected the claims made against the strike ban, holding that it
is compatible with the right to form associations both under Article 9(3) of the Basic Law and
the ECHR. Nevertheless, the constitutional petrification of the strike ban arrived at by the
Federal Constitutional Court in its decision must be viewed critically, not only from the perspec-
tive of constitutional law,6but also because of its confrontational stance toward the ECHR and the
European Court of Human Rights.7
B. Constitutional Evaluation
With regard to constitutional law, the Federal Constitutional Court examines the ban on strike
action by career civil servants in light of the right to form associations under Article 9(3) of the
Basic Law, and in light of traditional constitutional principles referring to the civil service.
The latter have always included a status-based ban on civil servant strikes under Article 33(5)
of the Basic Law.
I. Scope of Protection of the Right to Form Associations
The Court’s statements about the personal and the material scope of protection of the right to
form associations confirm its own previous case-law and that of the Federal Labor Court. The
personal scope of protection of the right to form associations extends to all persons in their capac-
ity as members of a given profession, with no category of professionals excluded.8It therefore also
applies to career civil servants. The material scope of protection encompasses the right to form
associations, which includes the right to strike.9All behaviors specific to associating are covered,
2Article 33(5) of the Basic Law reads: “The law governing the public service shall be regulated and developed with due
regard to the traditional principles of the professional civil service.”
3Judgment of June 12, 2018 at para. 120 (citing various opinions for each core structural principle).
4Article 9(3), sentence 1 of the Basic Law reads: “The right to form associations to safeguard and improve working and
economic conditions shall be guaranteed to every individual and to every occupation or profession.”
5Article 11(1) of the ECHR reads: “Everyone has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the protection of his interests.”
6See infra Section B.
7See infra Section C.
8Judgment of June 12, 2018 at para. 113.
9Judgment of June 12, 2018 at para. 115.
224 Matthias Jacobs and Mehrdad Payandeh
not just a set of core activities. The Federal Constitutional Court at first only mentions the right to
strike10 but then goes on to characterize collective action by labor as a protected means,11 and it
does so in a manner that one must assume that there is no predetermined inventory of protected
means of collective action.12
The Federal Constitutional Court for the first time took a position on the relationship between
Article 9(3) and Article 33(5) of the Basic Law. As recently as 2014, the Federal Administrative
Court held that Article 33(5) of the Basic Law directly limits the scope of protection under Article
9(3) of the Basic Law.13 That view renders a balancing of these two conflicting constitutional legal
positions immaterial. The Federal Constitutional Court, however, has now taken a different
approach: It notes that the traditional principles of the civil service system do not preempt the
right to form labor coalitions from applying in general, but they rather call for review at the level
of whether they justify the impairment of this right.14 This is, in general, a convincing doctrinal
approach to fundamental rights.15
In the Federal Constitutional Court’s view, strikes by career civil servants are therefore within
the scope of protection of Article 9(3) of the Basic Law and so deemed a protected activity within
the right to form labor coalitions.16 This approach, however, is not self-explanatory. Civil servants’
“working conditions”are not determined by the collective agreements that collective action typ-
ically aims to procure, but rather by laws and regulations. Now, the Federal Constitutional Court
and the Federal Labor Court share the view that Article 9(3) of the Basic Law protects a greater
range of activity than temporary work stoppages by those employees whose own conditions of
employment will be determined by the collective agreement they are seeking. The protection
extends instead to all activities specific to labor coalitions.17 After the Federal Constitutional
Court in 2014 extended constitutional protection to flash-mobs when these are incidental to a
strike,18 apparently it will now also hold that a sympathy strike is likewise a generally permissible
means of collective action:19 To fall under the scope of protection of Article 9(3) of the Basic Law,
a strike by career civils servants does not need to be aimed at extracting a collective agreement for
themselves. According to the Second Senate, it is instead sufficient that the strike is led by a union
and related to another collective bargaining effort.20 From the Court’s point of view, the fact that a
collective agreement can have no legal effect on civil servants themselves, and that they are instead
seeking a spill-over effect from the public employees’union’s outcome into their own compen-
sation, has no bearing on whether the challenged activity falls within the scope of protection.
If uninvolved “third parties”with no legal relationship whatsoever to the employer are permitted
10Judgment of June 12, 2018 at para. 114.
11Judgment of June 12, 2018 at para. 116.
12Bundesarbeitsgericht [BAG] [Federal Labor Court] Sept. 22, 2009, N
EUE
Z
EITSCHRIFT FÜR
A
RBEITSRECHT
[NZA]
1347, 1351. See also Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 3, 2014, N
EUE JURISTISCHE
W
OCHEN
-
SCHRIFT
[NJW] 1874, 1875–76 (affirming). But see Matthias Jacobs, Das neue Arbeitskampfrecht des Bundesarbeitsgerichts,
Z
EITSCHRIFT FÜR
A
RBEITSRECHT
71, 81 (2011) (criticizing the holding).
13Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court] Feb. 27, 2014, 149 Entscheidungen des
Bundesverwaltungsgerichts [BVerwGE] 117, 121, 125–26 (ruling in favor of a “comprehensive ban”on strikes by civil
servants; the strike ban “takes precedence over the fundamental right to form labor coalitions under article 9(3) of the
Basic Law”).
14Judgment of June 12, 2018 at paras. 138–39.
15See also Timo Hebeler, Die Beamtenstreikentscheidung des Bundesverfassungsgerichts,Z
EITSCHRIFT FÜR
T
ARIFRECHT
368,
370 (2018) (agreeing).
16Judgment of June 12, 2018 at para. 137.
17See Judgment of June 12, 2018 at para. 115; NJW 1874 (1875); NZA 1347 (1350–51).
18NJW 1874 (1875).
19See also Paul Melot de Beauregard, Kein Streikrecht für Beamte,D
ER
B
ETRIEB
1737 (2018); Mike Wienbracke,
Commentary, Anmerkung,E
UROPÄISCHE
Z
EITSCHRIFT FÜR
W
IRTSCHAFTSRECHT
[E
U
ZW] 653 (2018).
20Judgment of June 12, 2018 at para. 140.
German Law Journal 225
to join the labor dispute by showing up for a flash-mob incidental to a strike, then the same must
apply to civil servants.21
The Federal Constitutional Court sees another conceivable objection in the “strikers”lacking
“eligibility to enter into collective agreements.”22 This is odd, at least from a terminological stand-
point, because the strikers are neither eligible nor required to enter into collective agreements.
Eligibility to enter into such agreements can only apply to labor coalitions, not to their members.
Be that as it may, the strikes by the career civil servants in the case in which this decision was
rendered were led by the Gewerkschaft Erziehung und Wissenschaft, a labor union eligible to
enter into collective agreements.
II. The Justification of the Impairment
At the center of the analysis under constitutional law is the question of whether “sufficiently
important interests protected by constitutional law”justify an impairment of the right.23
1. The Strike Ban as a Traditional Principle of the Career Civil Service System
The Federal Constitutional Court first re-elaborates that the career civil servant strike ban is
an independent traditional principle of the career civil service system within the meaning of
Article 33(5) of the Basic Law.24 It has been in place since the Weimar period, which makes
it “customary”or “conventional,”in a manner that it possesses “traditionality.”The substantive
quality required for the recognition of such a constitutional principle is found in the inextricable
link between the strike ban and, on the one hand, the duty of loyalty imposed under career
civil servant law, and, on the other hand, the principle of alimentation. The duty of loyalty pur-
portedly requires duly appointed and sworn civil servants to set aside their own interests in the
performance of the duties entrusted to them. Engaging in a labor dispute would be impossible to
reconcile with this idea. The same is said to be true of alimentation: Civil servants have an obli-
gation to put all their labor at their employer’s disposal, and in turn the employer is obligated to
provide them with alimentation for life.
Fundamental to the judgment—and at the same time the crux of the decision—is the sharply
worded conclusion that “[a]ccording to the present constitutional concept of the career civil
service system, the ban on strike action is inseparably linked to the principle of alimentation
and the duty of loyalty.”25 The Court adds that a right to strike for career civil servants would
be “incompatible with these two principles which are essential elements of a civil servant’s
functions.”The strike ban under Article 33(5) of the Basic Law is rather—and once more the
uncompromising language is striking—an “independent structural principle of the career civil
service system,”the “abandon[ment of which] would fundamentally challenge the order of the
career civil service system as it exists in Germany.”26 It is already clear at this point that the sub-
sequent establishment of practical concordance between the two conflicting principles will not
21NJW 1874 (1876); NZA 1347 (1352).
22Judgment of June 12, 2018 at para. 140.
23Judgment of June 12, 2018 at para. 142.
24Judgment of June 12, 2018 at paras. 144–152; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 11,
1958, 8 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 1, 17; Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] June 11, 1958, 8 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 28, 35;
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 30, 1977, 44 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 249, 264; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court]
Sept. 19, 2007, 119 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 247, 264.
25Judgment of June 12, 2018 at para. 152.
26Judgment of June 12, 2018 at para. 152.
226 Matthias Jacobs and Mehrdad Payandeh
heed the right to form associations,27 and the red line the Federal Constitutional Court thereby
draws against the European Court of Human Rights as a precautionary measure is clearly
discernible.
The Senate then goes beyond this general statement and adds that a right to strike, and be it
only for subsets of career civil servants:
[W]ould fundamentally reshape the understanding and regulations of the civil service.
It would erode the principles of alimentation, of the duty of loyalty, of lifetime employment,
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.28
If a right to strike was permitted, there would be no more room to set remuneration standards via
legislation, for instance.29 Once more, the Federal Constitutional Court emphasizes that a right to
strike for civil servants “would interfere with the core ::: structural principles guaranteed under
Article 33(5)”of the Basic Law, such that the “obligation to observe the ban on strike action blocks
the way to profound structural changes effected by the general legislation.”30
2. Proportionality Test and the Establishment of Practical Concordance?
The Senate in the end states its view that the status-based strike ban for career civil servants
also does not disproportionately interfere with the guarantee of Article 9(3) of the Basic
Law.31 The clash between the right to form associations and the traditional principles of the career
civil service system is said to call for resolution “in accordance with the principle of practical con-
cordance, which means that conflicting constitutional law positions must be assessed in terms of
how they interact and ::: be balanced in such a way that they are as effective as possible for all
persons involved.”32 Under the approach of the Constitutional Court, however, it is hard to rec-
ognize how the right to form associations is being upheld to the greatest possible extent. Rather,
Article 33(5) of the Basic Law asserts itself totally,33 thereby raising the question of why the Federal
Constitutional Court does not simply join the Federal Administrative Court in directly limiting
the scope of protection of Article 9(3) of the Basic Law.
Rather unconvincing is, furthermore, the Court’s assessment that the impairment of Article 9(3)
of the Basic Law does not impose a particularly heavy burden on career civil servants, supposedly
for the reason that the right to strike is “only one element of the right to form lab[o]r coalitions.”34
The right to strike, along with the autonomy to engage in collective bargaining, indeed forms the
very core of the freedom to form labor coalitions. Other partial guarantees that extend to labor asso-
ciation members, such as the right to be informed or the right to be represented by counsel, are—by
comparison—relatively marginal. The statements that the right to form labor coalitions is not
wholly relegated, and that the strike ban “does not render it completely ineffective,”are therefore
only partially correct. This applies especially when—as has happened in the past—public sector pay
increases are regularly withheld from career civil servants or are extended to them only symbolically.
This is the context in which one must read the Federal Administrative Court’s decision on career
27Cf. Hebeler, supra note 15, at 371 (“[The] switches [are] set in such a way [that, if the tension between article 9(3) and
article 33(5) of the Basic Law is not resolved,] the latter prevails.”)
28Judgment of June 12, 2018 at para. 153.
29Judgment of June 12, 2018 at paras. 153, 158.
30Judgment of June 12, 2018 at para. 153.
31Judgment of June 12, 2018 at paras. 156–162.
32Judgment of June 12, 2018 at para. 157 (emphasis added).
33Martin Stuttmann, Anmerkung,N
EUE
Z
EITSCHRIFT FÜR
V
ERWALTUNGSRECHT
[NV
W
Z] 1137 (2018).
34Judgment of June 12, 2018 at para. 158 (“the [burden] ::: is not unreasonable”) (emphasis added).
German Law Journal 227
civil servants’right to strike,35 which sought to free the civil servants from their “defenseless
predicament.”36
As the Second Senate emphasizes, various statutory provisions37 nevertheless compensate the
impairment of the right to form labor coalitions by granting leading union federations the right to
participate in rulemaking concerning career civil servant relations. Nevertheless, in the view of the
Court, a “genuine co-decisional right”of labor unions when it comes to setting civil servant sala-
ries would conflict with the principle of democracy embodied in Articles 20(1)38 and 20(2)39 of the
Basic Law.40 The Second Senate also points to the principle of alimentation, explaining that it gives
individual civil servants a right tantamount to a fundamental right to seek judicial review of the
government’s fulfilment of its duty in that regard and to compel it through litigation. Neither of
these considerations, however, seem very convincing. There is no further discussion of why the
principle of democracy should operate as a bar to greater union participation. A genuine conflict
with the principle of democracy could only arise, however, if such determinations were to be made
subject to the consent of labor unions.41 Strengthened participation rights alone—regardless of
how these would have to be arranged—do not call into question the legislature’s political preroga-
tive and decision-making initiative. Further, post-facto judicial review of alimentation cannot be
compared to having an opportunity to be involved in establishing decent working conditions from
the outset.
It would have been more convincing had the Court followed the approach by the Federal
Administrative Court42 and others43 and arrived at a practical concordance informed by article
33(4) of the Basic Law,44 whereby it might have narrowed the scope of the strike ban to “core-area
career civil servants”45 mainly engaged in exercising sovereign functions. Public school teachers in
particular—the “marginal-area civil servants”who are the primary concern in practice—would
not be covered by the ban on strikes in this case. In addition to affording greater weight to the
fundamental right to form associations, this approach would have had the charm of being closer to
the standards of the European Court of Human Rights, which this Article will consider shortly.
35149 BV
ERF
GE 117. See also, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 24, 2015, 139
E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 64 (discussing unconstitutional under-alimentation).
36Stuttmann, supra note 33.
37E.g., Bundesbeamtengesetz [BBG] [Career Federal Civil Servants Act], July 17, 1953, B
UNDESGESETZBLATT
,T
EIL
I
[BGB
L
I] at 567, § 118; Gesetz zur Regelung des Statusrechts der Beamtinnen und Beamten in den Ländern
[Beamtenstatusgesetz] [BeamtStG] [Act on the Regulation of the Law Concerning the Status of Career Civil Servants]
June 17, 2008, B
UNDESGESETZBLATT
,T
EIL
I [BGB
L
I] at 1020, § 53.
38Article 20(1) of the Basic Law reads: “The Federal Republic of Germany is a democratic and social federal state.”
39Article 20(2) of the Basic Law reads: “All state authority is derived from the people. It shall be exercised by the people
through elections and other votes and through specific legislative, executive and judicial bodies.”
40Judgment of June 12, 2018 at para. 162.
41Timo Hebeler, Ausweitung der gewerkschaftlichen Beteiligung bei der Vorbereitung gesetzlicher Regelungen der beamten-
rechtlichen Verhältnisse?,N
EUE
Z
EITSCHRIFT FÜR
V
ERWALTUNGSRECHT
[NV
W
Z] 1368 (2018).
42149 BV
ERW
GE 117 (134).
43See Frauke Brosius-Gersdorf, Commentary, Kommentierung,in 2G
RUNDGESETZ
art. 33, at para. 189 (Horst Dreier ed.,
3rd ed. 2015); Gerit Armin Neuhäuser & Partrick Christian Otto, Kein generelles Streikverbot für Beamte!,in D
EUTSCHES
V
ERWALTUNGSBLATT
393, 397 (2016); Robert von Steinau-Steinrück & Stephan Sura, (Noch) kein Streikrecht für Beamte,
NZA 580, 582–83 (2014); G
UNNAR
F
OLKE
S
CHUPPERT
,D
AS BEAMTENRECHTLICHE
S
TREIKVERBOT AUF DEM
P
RÜFSTAND
24 (2014); Paul Gooren, Das Ende des Beamtenstreikverbots,Z
EITSCHRIFT FÜR
B
EAMTENRECHT
400, 404–05 (2011);
G
ABRIELE
B
UCHHOLTZ
,S
TREIKEN IM EUROPÄISCHEN
G
RUNDRECHTSGEFÜGE
296, 443–445 (2014); R
ICHARD
N. L
AUER
,D
AS
R
ECHT DES
B
EAMTEN ZUM
S
TREIK
271 (2017); Claudia Schubert, Das Streikverbot für Beamte und das Streikrecht aus Art.
11 EMRK im Konflikt, 137 A
RCHIV DES ÖFFENTLICHEN
R
ECHTS
[AöR] 92, 115–16 (2012) (discussing the need to amend
the constitution); Christian Traulsen, Das Beamtenstreikverbot zwischen Menschenrechtskonvention und Grundgesetz,68
J
URISTENZEITUNG
[JZ] 65, 69–70 (2013). But see,e.g.,U
DO
D
I
F
ABIO
,D
AS BEAMTENRECHTLICHE
S
TREIKVERBOT
58–59 (2012).
44Article 33(4) of the Basic Law reads: “The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to
members of the public service who stand in a relationship of service and loyalty defined by public law.”
45Judgment of June 12, 2018 at para. 158.
228 Matthias Jacobs and Mehrdad Payandeh
In rejecting the possibility of such a functionally differentiating approach to strike law,
the Second Senate points to the line-drawing difficulties inherent in resorting to the concept
of sovereign powers or authority.46 Not only would it prove difficult to clearly determine when
a particular service is an exercise of sovereign authority, but it would also be problematic to
determine in the abstract whether a particular official was permitted to strike who, as a result
of being reposted, reassigned, or transferred, for example, ended up performing some sovereign
and some non-sovereign functions. Moreover, the Senate is of the opinion that a right to strike for
“marginal-area civil servants”would jeopardize the guarantee of stable administration and
performance of official functions even beyond the scope of Article 33(4) of the Basic Law.
Yet, line-drawing difficulties are generally a weak reason.47 The legal practitioner encounters
them daily in many contexts, including, for instance, in Article 33(4) of the Basic Law, which—in
spite of the line-drawing issue—is not obsolete. As a rule, line-drawing problems are manageable.
The Federal Administrative Court in any case has convincingly explained what areas of admin-
istration pertain to the exercise of sovereignty.48 The notion that stable administration and gov-
ernmental functions would no longer be ensured if “marginal-area civil servants”obtained a
recognized right to strike is a mere assertion, one that is not even particularly plausible in view
both of the many regular employees in public service and of the privatization of many public
functions in recent years.49
Nevertheless, the Court does not fully block the path to a right to strike for “marginal-area
civil servants”de lege ferenda. As the Federal Constitutional Court points out elsewhere in the
judgment, a “right to strike, even for some groups of civil servants only ::: at the very
least ::: would require fundamental changes”to the regulation by the legislature “of the material
rights and duties including remuneration.”50 The Court, therefore, apparently would not regard
the legislative introduction of such a right to strike as entailing “structural changes to the regu-
lations essential to the career civil service system”51 standing in the way of continued development
of career civil servant law. Conceivably, by hinting at the option of legislative change, the Senate
has left itself an opening to react to the eventuality that the European Court of Human Rights
would overturn its decision.
As a matter of what the future law should look like, the legislature has considerable leeway to
provide “marginal-area civil servants”with more than a mere right to individual sympathetic par-
ticipation in wage-related strikes. Proposals for corresponding statutory schemes are on the table.
Despite the Federal Constitutional Court’s holding, one rather conservative option would be, for
instance, a “substantial expansion of trade unions’participation rights toward a negotiation
model”that goes beyond what Section 118 of the BBG and Section 53 of the BeamtStG provide,
as the Federal Administrative Court has already suggested.52 The same Court has already raised53
the possibility for the legislature to establish a negotiation and mediation model that would allow
unions a parity-based participation, along the lines of the so-called Third Way fashioned by the
46Judgment of June 12, 2018 at para. 161; Hebeler, supra note 15, at 371; Stuttmann, supra note 33.
47See also Steinau-Steinrück & Sura, supra note 43, at 582 (“ordinary legislation can be implemented ::: as regards sepa-
rating the domains”).
48149 BV
ERW
GE 117 (134–35) (discussing armed forces, police, other law enforcement agencies, the courts, tax admin-
istration, foreign service, and federal, state, and municipal administrative entities entrusted with planning and carrying
out official actions and with sovereign oversight functions).
49See 149 BV
ERW
GE 117 (135).
50Judgment of June 12, 2018 at para. 153 (emphasis added).
51Judgment of June 12, 2018 at paras. 119, 125.
52149 BVerwGE 117 (136). See also Schubert, supra note 43, at 109–10; U
LRICH
B
ATTIS
,S
TREIKVERBOT FÜR
B
EAMTE
37 (2013).
53149 BVerwGE 117 (136). See also Stefan Greiner, EMRK, Beamtenstreik und Daseinsvorsorge,D
IE
Ö
FFENTLICHE
V
ERWALTUNG
[DÖV], 623, 625–26 (2013).
German Law Journal 229
Federal Labor Court for church institutions.54 Furthermore, despite the Federal Constitutional
Court, “marginal-area civil servants”could be allowed to strike at least over the issue of salaries
as a way of pressuring the other side to accept concrete demands. Career civil servants’salaries
could be included as an issue in collective bargaining of public employment contracts “without
endangering the balance of the regulatory structure in career civil service law.”55 Not only could
labor unions in which career civil servants are organized engage in collective bargaining, but
career civil servants outside the domains of public administration covered under Article 33(4)
of the Basic Law could also join strikes, as indicated by the link established through the principle
of alimentation between collective agreements concerning public employees and the salaries of
career civil servants.56
C. Accounting for the ECHR and the Case-Law of the European Court of Human
Rights
Although the Federal Constitutional Court regards the European Convention on Human Rights
domestically as having the force of a federal statute under Article 59(2) of the Basic Law,57 the
Convention and the case-law of the European Court of Human Rights affect the interpretation of
constitutional law because of what is referred to as the Basic Law’s”openness”toward international
law and, especially, because of the Basic Law’s Article 1(2).58,59 This dimension of constitutional law is
significant in light of the fact that the European Court of Human Rights in several proceedings against
Turkey—in particular Demir and Baykara60—has expanded the rights of public employees and—in
Enerji Yapi-Yol Sen—declaredthatablanketbanonstrikesbypublicemployeesiscontrarytothe
Convention.61 In the aftermath of those decisions, it was hotly debated whether the ban on strikes by
career civil servants in Germany is contrary to the Convention,62 with the administrative courts
54Bundesarbeitsgericht [BAG] [Federal Labor Court] Nov. 20, 2012, N
EUE
Z
EITSCHRIFT FÜR
A
RBEITSRECHT
[NZA] 448,
463–464 (2013).
55149 BVerwGE 117 (137).
56149 BVerwGE 117 (137).
57Article 59(2) of the Basic Law reads
Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require
the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment
of federal law. In the case of executive agreements the provisions concerning the federaladministration shall apply,
mutatis mutandis.
58Article 1(2) of the Basic Law reads: “The German people therefore acknowledge inviolable and inalienable human rights
as the basis of every community, of peace and of justice in the world.”
59Judgment of June 12, 2018 at paras. 127–28; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 26,
1987, 74 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 358, 370; Bundesverfassungsgericht [BVerfG]
[Federal Constitutional Court] Oct. 14, 2004, 111 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE]
307, 317; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Feb. 26, 2008, 120 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 180, 200–01; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court]
Feb. 8, 2011, 128 E
NTSCHEIDUNGEN DES
B
UNDESVER FASSUNGS GERICHTS
[BV
ERF
GE] 326, 367; Bundesverfassungsgericht
[BVerfG] [Federal Constitutional Court] June 20, 2012, 131 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE]
268, 295.
60Demir & Baykara v. Turkey, App. No. 34503/97 (Nov. 11, 2008), http://hudoc.echr.coe.int/eng?i=001-89558.
61Enerjy Yapi-Yol Sen v. Turkey, App. No. 68959/01 (Apr. 21, 2009), http://hudoc.echr.coe.int/eng?i=001-92267; Jürgen
Bröhmer, Versammlungsfreiheit und Vereinigungsfreiheit,in 1 EMRK/GG K
ONKORDANZKOMMENTAR ZUM EUROPÄISCHEN
UND DEUTSCHEN
G
RUNDRECHTSSCHUTZ
, ch. 19, at paras. 106 (Oliver Dörr et al. eds., 2nd ed. 2013) (discussing the develop-
ment of the case-law).
62See Jörg Polakiewicz & Adriana Kessler, Das Streikverbot für deutsche BeamtInnen,NV
W
Z 841, 842 (2012) (discussing
incompatibility with the ECHR); Monika Schlachter, Beamtenstreik im Mehrebenensystem,R
ECHT DER
A
RBEIT
[R
D
A] 341,
347 (2011); C
HRISTOPH
I
CKENROTH
,D
AS DEUTSCHE
B
EAMTENSTREIKVERBOT IM
L
ICHTE DER
E
UROPÄISCHEN
M
ENSCHENRECHTSKONVENTION
164 (2016); L
AUER
,supra note 43, at 237; B
UCHHOLTZ
,supra note 43, at 288–301;
Gooren, supra note 43, at 404–05 (tending the same way); Stefan Werres, Der Einfluss der Menschenrechtskonvention auf
das Beamtenrecht, DÖV 873, 879 (2011); Josef Franz Lindner, Dürfen Beamte doch streiken?, DÖV 305, 307–08 (2011)
230 Matthias Jacobs and Mehrdad Payandeh
coming to divergent conclusions.63 The Federal Administrative Court, most prominently, held that
the career civil servant strike ban is incompatible with Article 11 of the ECHR, but that in light of
Article 33(5) of the Basic Law, it was for the legislature to strike a balance between the conflicting
standards of the ECHR and the Basic Law under the principle of practical concordance.64
The Federal Constitutional Court, however, sees no conflict between the career civil servant
strike ban constitutionally anchored in Article 33(5) of the Basic Law and Article 11 of the
ECHR in the contours set by the case-law of the European Court of Human Rights. Beyond
the concretely decided question of the strike ban in career civil service law, the decision
also (1) specifies the guiding effect of the case-law of the European Court of Human Rights,
(2) delineates the limits of the Basic Law’s openness to the Convention, and (3) warrants conclu-
sions about the institutional relationship between the Federal Constitutional Court and the
European Court of Human Rights.
I. Orientation and Guidance Function of the Case-Law of the European Court of Human Rights
The Federal Constitutional Court has consistently held that decisions of the European Court of
Human Rights are not only binding in individual cases under Article 46(1) of the ECHR,65 but they
must also be duly considered within the domestic legal order.66 The strike ban decision builds upon
this jurisprudential approach and grounds the authority of European Court of Human Rights deci-
sions, on the one hand, in their “[at any rate de facto] direction and guidance function,”67 and, on the
other hand, in the notion of avoiding conflicts between domestic law and the international legal obli-
gations of the Federal Republic of Germany.68 The Senate also emphasizes, following established con-
stitutional case-law, that this approach does not imply a schematic adoption of European Court of
Human Rights case-law, but rather that there is a need to situate the human rights considerations
within the domestic constitutional order “in an active process (of acknowledgment).”69
1. Contextualization
The Senate develops new standards when it comes to the need for a contextualized reception of
European Court of Human Rights decisions in proceedings to which the Federal Republic of
Germany has not been a party.70 A correspondingly context-sensitive reception of judicial
(discussing conformity with the Convention); Anna-Bettina Kaiser, Streikrecht für Beamte—Folge einer Fehlrezeption?, 142
AöR 417 (2017); J
ENS
K
ERSTEN
,N
EUES
A
RBEITSKAMPFRECHT
26–27 (2012); Hinnerk Wißmann, Streikrecht für Beamte,
Z
EITSCHRIFT FÜR DAS
J
URISTISCHE
S
TUDIUM
395, 400 (2011) (tending the same way).
63For an overview, see Neuhäuser & Otto, supra note 43, at 394–95; Kaiser, supra note 62, at 429–430
64149 BV
ERW
GE 117. See also Bundesverwaltungsgericht [BV
ERW
G] [Federal Administrative Court] Feb. 26, 2015, N
EUE
Z
EITSCHRIFT FÜR
V
ERWALTUNGSRECHT
[NV
W
Z] 811 (reaffirming the decision). But see Brosius-Gersdorf, supra note 43, at
para. 190 (discussing criticisms); Christian Walter, Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung
und Fragmentierung,75Z
EITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES
R
ECHT UND
V
ÖLKERRECHT
753, 757–761 (2015)
(differentiating).
65See Hans-Joachim Cremer, Entscheidung und Entscheidungswirkung,in EMRK/GG, K
ONKORDANZKOMMENTAR
,supra
note 61, ch. 32, at para. 110; H
EIKO
S
AUER
,S
TAATSRECHT
III § 7, at paras. 11–12 (5th ed. 2018).
66See cases cited supra note 59.
67Judgment of June 12, 2018 at para. 129 (citing 128 BV
ERF
GE 326 (368); 111 BV
ERF
GE 307 (320) (giving an even more
expansive holding)). In panel decisions one finds, going further, the concept of a “normative guidance function.”See
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sept. 19, 2006, N
EUE JURISTISCHE
W
OCHENSCHRIFT
[NJW] 499, 501; Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Dec. 13, 2006, N
EUE
Z
EITSCHRIFT
FÜR
V
ERWALTUNGSRECHT
[NVwZ] 808, 811–12; Bundesverwaltungsgericht [BVerwG] [Federal Administrative Court]
Dec. 16, 1999, 110 E
NTSCHEIDUNGEN DES
B
UNDESVERWALTUNGSGERICHTS
[BV
ERW
GE] 203, 210; Andreas Voßkuhle, Der
europäische Verfassungsgerichtsverbund,NV
W
Z 1, 4 (2010).
68Judgment of June 12, 2018 at para. 129 (citing 111 BV
ERF
GE 307 (328); Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] Oct. 26, 2004, 112 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 1 (25–26)).
69Judgment of June 12, 2018 at para. 131 (citing 128 BV
ERF
GE 326 (370)).
70Judgment of June 12, 2018 at para. 132.
German Law Journal 231
decisions is required to do justice to the peculiarities of judicial law-making: Courts do not make
law in the abstract, but rather generate law while deciding concrete disputes.71 Regarding the ori-
entation and guidance function of the case-law of the European Court of Human Rights, this
peculiarity is amplified by the fact that the decision will always have been rendered in light of
the legal order of an individual state party to the Convention. In this regard, the European
Court of Human Rights undertakes case-dependent and case-specific elaborations of the
ECHR.72 Accordingly, the Federal Constitutional Court has already emphasized in its Görgülü
decision that the Convention’s legal protections are set up to operate through the determination
of concrete individual disputes between the applicants and the state parties to the Convention, and
that it is therefore the task of domestic courts to “fit in”the decisions of the European Court of
Human Rights into the domestic legal order and its doctrines.73 The proportionality test is the
main—but not exclusive—point at which the broader context of a government action that has
been challenged before the European Court of Human Rights may be crucial to a decision
and thus to its reception. When the European Court of Human Rights case-law is transferred into
German law, the Federal Constitutional Court thus duly lays the focus upon considering the con-
crete facts of the case, the legal-cultural background, and the specific peculiarities of the German
legal order.74
2. Relativization
Unconvincing, by contrast, is the Senate’s general relativization of the guiding effect of European
Court of Human Rights decisions in connection with the required contextualization. It justifies
this by emphasizing that the ECHR, unlike European Union law, does not take precedence of
application (Anwendungsvorrang) over domestic law.75 It is, however, far from clear why one
should conclude from the absence of a rule of prioritization that the substantive significance
of European Court of Human Rights decisions should be diminished in general when interpreting
the ECHR. The hierarchy of legal rules only becomes relevant at a later stage regarding the limits
of complying with the case-law of the European Court of Human Rights. Such examination,
however, presupposes the consideration of the substantive requirements of the ECHR, because
the hierarchy question only arises in case of a conflict between German law and the
Convention. The Federal Constitutional Court’s holding is therefore unconvincing when the
Court states that the main purpose of the guiding effect is “to identify ::: principal values enshrined
in the Convention and address them.”This approach fails both in view of the fact that the Court
elsewhere has emphasized that the ECHR applies in Germany “as interpreted by the European
CourtofHumanRights,”76 and also in light of the practice of the German courts and of the
Federal Constitutional Court itself, which attach far greater importance to the case-law of the
European Court of Human Rights than the term “principal values”would suggest. This approach
does not do justice to the importance of the European Court of Human Rights as an authoritative
arbiter of the meaning of the ECHR77 endowed with the competence to interpret and substantiate
the meaning of the Convention.78 Moreover, reducing the inquiry to the principal values of the
71See M
EHRDAD
P
AYANDEH
,J
UDIKATIVE
R
ECHTSERZEUGUNG
210–219, 247–248, 465–470 (2017) (providing a detailed
discussion).
72S
AUER
,supra note 65, at para. 21.
73111 BV
ERF
GE 307 (327).
74Judgment of June 12, 2018 at para. 132.
75Judgment of June 12, 2018 at para. 132.
76111 BV
ERF
GE 307 (325–26).
77149 BV
ERW
GE 117 (129–30); Walter, supra note 64, at 756–57.
78Marten Breuer, Art. 46 Verbindlichkeit und Vollzug der Urteile,in EMRK 663, at para. 45 (Ulrich Karpenstein & Franz C.
Mayer eds., 2nd ed. 2015); S
AUER
,supra note 65, at para. 11a; Cremer, supra note 65, at para. 118; Jens Meyer-Ladewig &
Kathrin Brunozzi, Art. 46 Verbindlichkeit und Durchführung der Urteile,in EMRK 695, at para. 16 (Jens Meyer-Ladewig et al.
eds., 4th ed. 2017) (going so far as to call it “judge-made law”).
232 Matthias Jacobs and Mehrdad Payandeh
jurisprudence contravenes what the Federal Constitutional Court’s openness toward international
law is meant to achieve, which is to avoid—if possible—conviction of the Federal Republic of
Germany by the European Court of Human Rights for a violation of the ECHR.
3. Operationalization
In applying these standards to the case at hand, the Federal Constitutional Court does not find
the strike ban for career civil servants to be in violation of the ECHR.79 The Court begins by
going through the relevant precedents of the European Court of Human Rights. In doing so,
it is, however, rather unusual that the Court, when addressing Demir and Baykara, dedicates more
space to the separate concurring opinion of four judges than to the majority’s holding. Because the
majority decision confirms the importance of the right to form associations even for civil servants,
while the separate concurring opinion emphasizes the unique features of the civil service and the
divergent arrangements of the ECHR states, the latter is of course more in line with the Federal
Constitutional Court’s approach. From the point of view of the Senate’s argument, this emphasis is
understandable. But by representing the case this way, the Court gives the impression that it wants
to dilute the significance of the majority opinion and not respect the way the votes came down
inside the Grand Chamber of the European Court of Human Rights.
The case-law of the European Court of Human Rights makes clear that while the European
Court considers the right to strike to be protected under Article 11(1) of the ECHR and as encom-
passing public sector employees, it does not regard the right to strike as guaranteed in an absolute
manner. The European Court is rather prepared to view substantively grounded restrictions as
justified. In the challenges brought against Turkey, in which the European Court of Human
Rights held that Article 11 of the ECHR had been violated, the Court criticized what in its view
was a lack of convincing grounds for justifying the impairment of the right to form labor coalitions
measured against the standard of necessity in a democratic society pursuant to Article 11(2) of the
ECHR. In Demir and Baykara, the European Court of Human Rights regards a mere reference to
the privileged position of civil servants as insufficient justification for curtailing the right to
strike.80 And it stresses in Enerji Yapi-Yol Sen that in Turkey, the strike ban applies to the whole
government workforce, not just to certain groups of public sector employees.81 The Federal
Constitutional Court rightly points out that the European Court of Human Rights does not regard
the right to strike as an end in itself, but rather as a means for labor unions to make themselves
heard and thereby protect their interests.82 This approach opens up the possibility of a differen-
tiated assessment under Convention law, taking into account that career civil servants and their
representatives have other ways to pursue their interests, such as participatory rights and the right
to seek judicial review of alimentation claims under Article 33(5) of the Basic Law.83 Against this
backdrop, the Federal Constitutional Court engages in detailed reasoning, including the exami-
nation of the case-law of the European Court of Human Rights, in order to conclude that the strike
ban is in accordance with Article 11 of the ECHR.84 The Senate explains that the strike ban in
Germany is not an expression of privileges held by career civil servants, and that it serves more
than to preserve the functioning of public administration and secure the rights of third parties.
79Judgment of June 12, 2018 at paras. 163–88.
80Demir, App. No. 34503/97 at para. 168.
81Enerjy Yapi-Yol Sen, App. No. 68959/01 at para. 32. See also Kaiser, supra note 62, at 435–36 (discussing the ambiguities
in the translation of the passage from the French-language decision); O
LIVER
L
EPSIUS
,R
ELATIONEN
53 (2016) (criticizing the
translation of the decision in NZA 1423 (2010)).
82Enerjy Yapi-Yol Sen, App. No. 68959/01 at para. 24. See also, Wilson, National Union of Journalists and Others v.
The United Kingdom, App. No. 30668/96 (July 2, 2002) at para. 45, https://hudoc.echr.coe.int/ (exemplifying the formerly
even greater emphasis on this aspect in European Court of Human Rights jurisprudence).
83Judgment of June 12, 2018 at paras. 175, 183. See also Hebeler, supra note 15, at 372 (expressing skepticism).
84Judgment of June 12, 2018 at paras. 173–180.
German Law Journal 233
Instead, it is proper to be evaluated as it interrelates with the principles of fiduciary duty, lifetime
appointment, and alimentation, which are the hallmarks of the career civil servant relationship.85
The Federal Constitutional Court’s discussion is, in general, convincing. The Court highlights
the particularities of German career civil service law, which could at least plausibly justify an
impairment of the right to strike for career civil servants. In doing so, the Senate convincingly
distinguishes between Turkish law, the dispute-specific context of the relevant European Court
of Human Rights precedents, and the particularities of German public sector employment law
as follows: The European Court of Human Rights decisions with regard to Turkey cannot be
transferred sight unseen into the German legal context, because the strike ban in Turkey affected
all government workers, whereas the German ban applies only to duly appointed and sworn career
civil servants, leaving those in employer-employee relationships unaffected.86 Because there is no
uniform European approach, neither to the overall contours of public sector employment law nor
to the question of government workers’right to strike,87 there is much to be said for recognizing a
wide margin of appreciation for the member states in this regard.88
At the same time, the Federal Constitutional Court’s reasoning is highly results-oriented:
It marginalizes certain statements of the European Court of Human Rights that could be read
as calling into question the Federal Constitutional Court’s position, in particular, the emphasis
on the substantial significance of the right to strike with regard to the right to form labor coali-
tions, or the limited margin of appreciation of member states with regard to justifications for
impairments of this right. The Federal Constitutional Court ignores the European Court of
Human Rights’noticeable skepticism toward a purely status-related strike ban, as well as its pos-
itive inclination towards a functional differentiation under the criterion of being engaged in the
exercise of sovereign powers,89 as is implicit in the second sentence of Article 11(2) of the ECHR.
II. Limits of Openness Towards the Convention
Given the Federal Constitutional Court’s assumption that the strike ban in career civil service law
is compatible with the ECHR, it is surprising that the Court takes the occasion for making fun-
damental statements about the limits of the German Constitution’s openness towards the law of
the Convention. Building on previous case-law, the Senate first elaborates that European Court of
Human Rights precedents may only be considered to the extent that the German law that must be
interpreted and applied by German courts allows for such consideration in a methodologically
sound manner.90 In this context, the Federal Constitutional Court also refers—systematically,
but not very convincingly, because the issue is not one of juridical methods but rather of substan-
tive boundaries—to the absolute limit that is the immutable core of Germany’s constitutional
identity pursuant to Article 79(3) of the Basic Law.91,92 This limitation for the reception of
85Judgment of June 12, 2018 at para. 181.
86See Lindner, supra note 62, at 307–08; K
ERSTEN
,supra note 62, at 26; Jürgen Treber, Arbeitskampfmaßnahmen der
Arbeitnehmer,in S
CHAUB
A
RBEITSRECHTS
-H
ANDBUCH
§ 192, at para. 40 (Martina Ahrendt, et al. eds., 17th ed. 2017);
Schlachter, supra note 62 (expressing skepticism in light of the way the European Court of Human Rights picks up on function
rather than status).
87See Kaiser, supra note 62, at 422–424.
88See also L
AUER
,supra note 43, at 263–64 (taking the same position).
89Abbo Junker, Kooperation oder Konfrontation der obersten Instanzen in Deutschland und Europa,E
UROPÄISCHE
Z
EITSCHRIFT FÜR
A
RBEITSRECHT
304, 316 (2018); L
AUER
,supra note 43, at 261
90Judgment of June 12, 2018 at para. 133 (citing 111 BV
ERF
GE 307 (329); 128 BV
ERF
GE 326 (371)). See also
Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 22, 2014, 137 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 273, 321.
91Article 79(3) of the Basic Law reads: “Amendments to this Basic Law affecting the division of the Federation into Länder,
their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”
92See S
AUER
,supra note 65, § 9, at para. 43; Albert Ingold, Die verfassungsrechtliche Identität der Bundesrepublik
Deutschland, 140 AöR 1 (2015) (providing a detailed discussion); Thomas Wischmeyer, Nationale Identität und
234 Matthias Jacobs and Mehrdad Payandeh
international law was originally developed with regard to European Union law. It finds its origins
in the Lisbon judgment93 and was subsequently elaborated on in later opinions.94 The Court had
already referred to it as a limit for the application of the ECHR and of European Court of Human
Rights precedents in its Sicherungsverwahrung (protective custody) decision.95 Second, the
Court emphasizes that an interpretation warranted by the principle of openness to international
law must not restrict the protection of fundamental rights under the Basic Law. This boundary
of reception is important, particularly when it comes to multipolar fundamental rights
relationships.96 Third, the Court points to the need to ensure that European Court of Human
Rights standards are fitted into the German legal system “as carefully as possible.”97
As applied to the strike ban, these three kinds of limits to reception do not seem to fit very well.
In light of the open texture of Article 33(5) of the Basic Law, loosening the ban on strikes by career
civil servants would neither overstep the confines of juridical methodology98 nor would it hamper
the fundamental rights of third parties.99 And the requirement that the ECHR is to be carefully
fitted into domestic law does not stand in the way of examining Convention law standards, but
rather would guide that examination. The problem of the strike ban is more a question of whether
a possible Convention-based standard determining that career civil servants are entitled to go on
strike is substantively compatible with the Basic Law. This raises the hitherto not-yet-conclusively-
determined question of the substantive constitutional limits of consideration of European Court
of Human Rights precedents. On this question, the reasoning of the Görgülü decision has been
ambivalent, if not outright contradictory,100 and the Court’sSicherungsverwahrung decision has
Verfassungsidentität. Schutzgehalte, Instrumente,Perspektiven 140 AöR 415 (2015); S
VEN
S
IMON
,G
RENZEN DES
B
UNDESVERFASSUNGSGERICHTS IM EUROPÄISCHEN
I
NTEGRATIONSPROZESS
,96et seq. (2016); M
ONIKA
P
OLZIN
,
V
ERFASSUNGSIDENTITÄT
(2018).
93Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 30, 2009, 123 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 267, 344.
94See, e.g., Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Dec. 15, 2015, 140 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 317 (regarding European arrest warrants); Bundesverfassungsgericht [BVerfG]
[Federal Constitutional Court] Jan. 14, 2014, 134 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 366
(regarding the outright monetary transaction policy of the European Central Bank); Bundesverfassungsgericht [BVerfG]
[Federal Constitutional Court] June 21, 2016, 142 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 123
(same).
95128 BV
ERF
GE 326 (371).
96Judgment of June 12, 2018 at para. 134 (citing 137 BVerfGE 273 (329)); Wolfgang Hoffmann-Riem, Kontrolldichte und
Kontrollfolgen beim nationalen und europäischen Schutz von Freiheitsrechten in mehrpoligen Rechtsverhältnissen,Z
EITSCHRIFT
FÜR
E
UROPÄISCHE
G
RUNDRECHTE
[E
U
GRZ] 492 (2006); Gertrude Lübbe-Wolff, Der Grundrechtsschutz nach der Europäischen
Menschenrechtskonvention bei konfligierenden Individualrechten,in N
ACHDENKEN ÜBER
S
TAAT UND
R
ECHT
193 (Martin
Hochhuth ed., 2010); Heiko Sauer, Bausteine eines Grundrechtskollisionsrechts für das europäische Mehrebenensystem,
E
U
GRZ 195, 198 (2011).
97Judgment of June 12, 2018 at para. 135.
98See Neuhäuser & Otto, supra note 43, at 399 (making the same point); Angelika Nußberger, Auswirkungen der
Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte auf das deutsche Arbeitsrecht, RdA 270, 273 (2012);
Polakiewicz & Kessler, supra note 62, at 844; I
CKENROTH
,supra note 62, at 188; L
AUER
,supra note 43, at 279;
B
UCHHOLTZ
,supra note 43, at 59; Werres, supra note 62, at 880; Detlef Hensche, Der Streik im öffentlichen Dienst,in
A
RBEITSKAMPFRECHT
502, at para. 87 (Wolfgang Däubler ed., 4th ed. 2018). But see Thomas Rothballer, Zulässigkeit des
Beamtenstreiks?, NZA 1119, 1121 (2016) (articulating a different view); Achim Seifert, Recht auf Kollektivverhandlungen
und Streikrecht für Beamte,K
RITISCHE
V
IERTELJAHRESSCHRIFT FÜR
G
ESETZGEBUNG UND
R
ECHTSWISSENSCHAFT
357,
375–76 (2009); D
I
F
ABIO
,supra note 43, at 59; Traulsen, supra note 43, at 69 (providing a faltering reference to the constitu-
tional stature of the strike ban based on an interpretation open to international law that pertains especially to constitutional
law); Nils Schaks, Anmerkung zum Urteil des BVerwG vom 27.2.2014, Az.: 2 C 1/13 (Streikverbot für Beamte), NVwZ 743,
744 (2014); Schubert, supra note 43, at 115; Lindner, supra note 62, at 306; K
ERSTEN
,supra note 62, at 32.
99But see B
UCHHOLTZ
,supra note 43, at 335–343 (differentiating).
100111 BV
ERF
GE 307. See also Mehrdad Payandeh, Konventionswidrige Gesetze vor deutschen Gerichten, DÖV 382,
385 (2011) (discussing the decision).
German Law Journal 235
also not significantly elucidated the problem either.101 The two decisions rather vaguely described
the substantive limits without establishing a clear benchmark for when and under what circum-
stances the German Constitution does not comply with the ECHR. The Sicherungsverwahrung
decision is, however, the source of the reference to the limit imposed by the immutable core
of Germany’s constitutional identity under Article 79(3) of the Basic Law,102 to which the strike
ban decision refers in determining the applicable standards.103 Yet, when applying the constitu-
tional standards to the case at hand, the Court does not take up this standard again, but rather dips
back into language from the Görgülü decision—which was not reiterated in subsequent decisions
on the effect of the ECHR104—invoking “fundamental constitutional principles.”Because the
Senate assumed that the strike ban was compatible with the ECHR, the question of the limits
of considering the Convention was not relevant for the decision, so there was no need to clarify
whether the strike ban constitutes a “fundamental constitutional principle”not susceptible of
more than one interpretation.105 In spite of this, the Court concludes by remarking that “[n]
onetheless, many arguments would support this.”106
The determination that “fundamental constitutional principle[s]”constrain consideration
of the standards of the ECHR makes it clear that in the case of a collision between the
Convention and the Basic Law, the latter will not always prevail; it is only when there is a conflict
with specially qualified constitutional principles that Convention standards are barred from con-
sideration. The ECHR thus is accorded a privilege other international treaties are not. The Federal
Constitutional Court, pointing to Article 1(2) of the Basic Law, had already indicated as much in
its Treaty Override decision.107 At the same time, however, it is not quite clear whether the Federal
Constitutional Court regards these fundamental constitutional principles as identical—or as
congruent—with those encompassed by the concept of the German constitutional identity—which
was developed primarily as a limit to European integration—or to the observance of European
Union law. The differing terminology hints that the Federal Constitutional Court assumes looser
boundaries in regard to the ECHR than it does in the context of European integration. But
the Court in any case leaves for itself the option of declaring that constitutional standards are
“fundamental principles”beyond the limits of the constitutional identity doctrine, and thereby
immunizing constitutional law against international legal standards. This interpretation is also
supported by the Federal Constitutional Court’s allusion to the possibility that the strike ban
could be one such fundamental constitutional principle, because neither the strike ban nor the con-
stitutional guarantee of the career civil service system are within the scope of the guarantee of Article
79(3) of the Basic Law.108 Certainly, the precise constitutional limit of consideration of the
Convention cannot be stated in general on the basis of the constitutional identity or the notion
of fundamental constitutional principles. Therein lies what must be a considerable part of the appeal
for the Federal Constitutional Court of resorting to formulations like these: Eventually, the Court will
be called upon to ultimately determinewheretheboundaryliesinanindividualcase.
101128 BV
ERF
GE 326. See also Mehrdad Payandeh & Heiko Sauer, Menschenrechtskonforme Auslegung als Verfassungs-
mehrwert,J
URISTISCHE
A
USBILDUNG
289, 295–96 (2012) (discussing the decision).
102128 BV
ERF
GE 326 (371).
103Judgment of June 12, 2018 at para. 133.
104That said, the phrase does appear in the Lisbon judgment. 123 BV
ERF
GE 267 (400–401). The phrase also appears in
the Treaty Override decision. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Dec. 15, 2015, 141
E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 1, 24.
105Judgment of June 12, 2018 at paras. 172, 176.
106Judgment of June 12, 2018 at para. 172.
107141 BV
ERF
GE 1 (32); Mehrdad Payandeh, Grenzen der Völkerrechtsfreundlichkeit, NJW 1279, 1281 (2016) (criticizing
the indicated privileging of the Convention).
108See Monika Jachmann-Michel & Anna-Bettina Kaiser, Art. 33 GG,in 2K
OMMENTAR ZUM
G
RUNDGESETZ
807, at paras.
29, 41 (Peter Michael Huber & Andreas Voßkuhle eds., 7th ed. 2018); U
LRICH
B
ATTIS
,B
UNDESBEAMTENGESETZ
26, at para. 11
(5th ed. 2017).
236 Matthias Jacobs and Mehrdad Payandeh
Even though the Federal Constitutional Court does not conclusively determine whether the
strike ban in career civil service law is a fundamental constitutional principle such that conflicting
European Court of Human Rights standards would be barred from consideration, the mere sug-
gestion that it might be is rather alarming. Even if one comprehended the strike ban as a tradi-
tional principle of the professional career civil service system within the meaning of Article 33(5)
of the Basic Law, it is unconvincing to go on and characterize it as a “fundamental principle”and
suppose that that characterization shuts the door on other interpretations suggested by the ECHR
and the European Court of Human Rights. Doubts arise from the facts that the strike ban is not
expressly laid down in Article 33(5) of the Basic Law and that the provision conversely looks to
“development”of the law of public sector employees.109 Doubts arise also, and especially so,
because Article 33(5) merely requires that “the law governing the public service shall be regulated
and developed with due regard to the traditional principles of the professional civil service.”110
Even if one agrees with the Federal Constitutional Court’s assumption that some essential prin-
ciples deserve not just “due regard”but rather strict observance,111 it is doubtful whether such
observance would also apply to the strike ban, because, although it is connected to the basic
principles of the duties of loyalty and care, it cannot be equated with them.112 Furthermore,
the basic principles of the career civil service system are not absolute guarantees, but are—as most
constitutional provisions are—subject to impairment in order to accommodate other constitu-
tional principles.113 Therefore, it is hard to understand why restrictions of those constitutional
principles dealing with the career civil service should be categorically excluded. Quite the contrary,
it seems rather plausible that such restrictions could be regarded as legitimate in order to accom-
modate the right to form labor coalitions or the constitutional principle of the openness to
international law that calls for due regard for the standards set by the European Court of
Human Rights and the ECHR. Even if the Federal Constitutional Court is skeptical of differen-
tiating approaches to the career civil servant strike ban, it would not be out of line with core prin-
ciples of constitutional law to limit the strike ban to career civil servants that are actually
performing functions of state authority.114 Differentiating in this fashion would also be in line
with the European Court of Human Rights inasmuch as the Strasbourg Court has recognized that
a strike ban based on service function can affect particular groups of public servants.115
III. The Relationship Between the Federal Constitutional Court and the European
Court of Human Rights
The decision on the career civil servant strike ban constitutes yet another building block within the
institutional architecture of fundamental rights protection in Europe. The Federal Constitutional
Court upholds its generally open approach towards the Convention, which results in an extensive
consideration of the standards of the ECHR and of the case-law of the European Court of Human
Rights. It attaches to the Convention regime a significance within the domestic legal and constitu-
tional order far greater than the parity with federal statutes to which international treaties
are formally entitled in domestic law. In doing so, the Federal Constitutional Court rightly does
not constrain itself to uncritical, unilateral adoption of Convention standards. Instead,
109But see K
ERSTEN
,supra note 62, at 28 (taking a differentiating approach).
110Emphasis added by the authors.
111119 BV
ERF
GE 247 (262); H
ANS
D. J
ARASS
&B
ODO
P
IEROTH
,G
RUNDGESETZ FÜR DIE
B
UNDESREPUBLIK
D
EUTSCHLAND
702, at para. 52 (15th ed. 2018) (discussing limits and criticisms).
112Cf. Neuhäuser & Otto, supra note 43, at 396–97; Gooren, supra note 43, at 403.
113Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Nov. 16, 1992, 87 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 348, 355–56; Brosius-Gersdorf, supra note 43, at para. 177; J
ARASS
&P
IEROTH
,
supra note 111, at para. 45; Hensche, supra note 98, at para. 27.
114See also Neuhäuser & Otto, supra note 43, at 397; Polakiewicz & Kessler, supra note 62, at 844.
115Enerjy Yapi-Yol Sen, App. No. 68959/01 at para. 32.
German Law Journal 237
its reception of the case-law of the European Court of Human Rights is context-sensitive and must
be regarded as part of a judicial dialogue with the Strasbourg Court over the compatibility of the
strike ban for career civil servants with the Convention, a question that—contrary to widely-held
opinion within legal scholarship—has not yet been determined by the European Court of Human
Rights with sufficient clarity. At the time of this writing, it is impossible to tell whether the German
strike ban is compatible with ECHR standards, at least if one accepts the premise that this question
is ultimately to be determined by the European Court of Human Rights. Therefore, the Federal
Constitutional Court rightly points out that, “at this time,”a conflict between German law and the
ECHR does not exist.116 Both the context-sensitive reception of the case-law of the European
Court of Human Rights and the substantive arguments as to the compatibility of the German
strike ban with the Convention are, in general, convincing.117 It remains to be seen whether—
and if so, to what extent—the European Court of Human Rights will accept the Federal
Constitutional Court’s approach.118
Not so friendly towards the Convention is, however, that the Federal Constitutional Court
downplays the significance of the European Court of Human Rights’case-law by limiting its
domestic reception to the “principal values”embodied in those decisions. Moreover, unnecessarily
confrontational, and not convincing in substance, is the Court’s hint that if the European Court of
Human Rights were to declare the strike ban to be in violation of the ECHR, the German Court
might not go along. The Federal Constitutional Court has recently made similar allusions in its
Chefarzt (chief physician) decision.119 In doing so, the Senate is applying a strategy with regard
to its relationship with the European Court of Human Rights very similar to decisions on the
limits of European integration, whereby the Karlsruhe Court signals to the Court of Justice of
the European Union what specific kinds of interpretations of European Union law by the
Luxembourg Court the Federal Constitutional Court will regard as constitutionally acceptable.120
A dialogue, including one on substantive issues, between member state and European Union
courts is whole-heartedly welcome. Overt threats of non-compliance, however, are not. The fact
that the Federal Constitutional Court has regularly been willing to cooperate with both European
Courts and has yet to decline to follow the lead of either the Court of Justice of the European
Union or the European Court of Human Rights might be reassuring, but it cannot completely
overplay the confrontational tone of the German Constitutional Court.
116Judgment of June 12, 2018 at para. 163. But see Enerjy Yapi-Yol Sen, App. No. 68959/01 at para. 172 (applying the oper-
ative term gegenwärtig [at this time] to German law).
117But see Wienbracke, supra note 19, at 654.
118The Federal Constitutional Court could not refer the issue directly to the European Court of Human Rights because the
Federal Republic of Germany has not ratified Protocol No. 16, which allows the contracting parties’respective highest courts
to seek an advisory opinion from the European Court of Human Rights. Whether and in what manner the Court would have
done so is a separate issue. See Jörg Gundel, Erfolgsmodell Vorabentscheidungsverfahren?,E
UROPARECHT
609 (2015).
119137 BV
ERF
GE 273 (329). See also Claus Dieter Classen, Anmerkung, JZ 199 (2015) (discussing the decision). But attacks
on the Federal Constitutional Court’s very deferential stance toward religious societies have begun coming not out of
Strasbourg, but rather, Luxembourg. See,e.g., Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und
Entwicklung e.V. (Apr. 17, 2018), http://curia.europa.eu/juris/liste.jsf?num=C-414/16; Opinion of Advocate General Wathelet,
Case C-68/17, IR v. JQ (May 31, 2018), http://curia.europa.eu/juris/document/document.jsf?docid=202426&doclang=EN.On
the entire issue, see generally Michael Lysander Fremuth, Das letzte Amen ist noch nicht gesprochen,E
U
ZW 723 (2018).
120See, e.g., 123 BV
ERF
GE 267 (406–431) (hinting at a European Union primary law interpretation and directing this, at
least obliquely and maybe even primarily, at the European Court of Justice); Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] Apr. 24, 2013, 133 E
NTSCHEIDUNGEN DES
B
UNDESVERFASSUNGSGERICHTS
[BV
ERF
GE] 277, 316 (expect-
ing a narrow interpretation of extensive European Court of Justice precedents on the scope of the first sentence of Article 51(1)
of the Charter of Fundamental Rights of the European Union); 140 BV
ERF
GE 317 (355–366) (construing the Framework
Decision on European arrest warrants in accord with Article 1(1) of the Basic Law—the guarantee of human dignity—
and a corresponding expectation that the European Court of Justice shares that interpretation).
238 Matthias Jacobs and Mehrdad Payandeh
D. Conclusion
The Federal Constitutional Court not only recognizes that the career civil servant strike ban is
protected by Article 33(5) of the Basic Law, but it also enlarges this constitutional principle in
a manner that hardly leaves any room for conflicting fundamental rights such as the freedom
to form associations. The Court rejects differentiating approaches to career civil servants’right
to take collective action—in particular, any approach that would not focus on the status of civil
servants but rather on whether they are engaged in performing sovereign functions. Even if the
decision leaves a back door open with regard to “fundamental modifications,”it still leads to an
unnecessary restriction of possible legislative action and makes any prospect of reform more
difficult. When it comes to the consideration of the ECHR and the case-law of the European
Court of Human Rights, the decision contains further specifications and developments that, while
not fundamentally calling into question the Court’s friendly stance toward international law, are
still not fully convincing. The Federal Constitutional Court’s indication that it might not comply
with a demand of the European Court of Human Rights even to loosen the career civil servant
strike ban sends a rather uncooperative signal to the Strasbourg Court. The Federal Constitutional
Court thereby increases the not to be underestimated danger that domestic courts, especially in
other European states, will invoke the reservations advanced by the Federal Constitutional Court
in order to justify not following determinations made by European courts. Within the network of
European constitutional courts,121 the Federal Constitutional Court is not only responsible for
protecting Germany’s fundamental rights and the German Constitution, but also for safeguarding
the rule of law and the authority of the European courts, especially in times like these.
121Voßkuhle, supra note 67, at 1.
Cite this article: Jacobs M, Payandeh M (2020). The Ban on Strike Action by Career Civil Servants under the German Basic
Law: How the Federal Constitutional Court Constitutionally Immunized the German Legal Order Against the European
Convention on Human Rights. German Law Journal 21, 223–239. https://doi.org/10.1017/glj.2020.11
German Law Journal 239