Mehrdad Payandeh’s scientific contributions

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Publications (2)


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
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February 2020

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171 Reads

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2 Citations

German Law Journal

Matthias Jacobs

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Mehrdad Payandeh

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 encompasses 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.

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Citations (1)


... From this perspective, the civil servant status can even be argued to have deprived academics of certain rights that a regular worker might theoretically have, such as the right to organize collective action. That has been the case and continues to be the case for the shrinking tenured minority in Germany, where tenured professors are legally prohibited from going on a strike (Jacobs & Payandeh, 2019;Gallas, 2018). Thus, academic freedom in the form of state protection through tenure often came with strings attached: it provided security in exchange for substantive freedom. ...

Reference:

Academic Freedom and Precarity in the Global North: Free As A Bird
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