The Impact of the European Convention on Human Rights on German Labour Law: A Special Focus on Collective Labour Law

Summary

1. INTRODUCTION

For some time now, an increasing influence of European law on the legal orders of European countries has been observable. This is also the case in the area of labour law, which, with its social dimension, is said to have socially ‘integrative’ potential for Europe. The European Court of Human Rights (ECtHR) in Strasbourg, in particular, has distinguished itself as a central player in this field, by declaring the European Convention on Human Rights (ECHR) to be a ‘living instrument’. In the course of this development, national labour law, in particular the right to strike, has increasingly received an impetus from Strasbourg. The most prominent legal cases have been Demir and Baykara and Enerji Yapi-Yol Sen. In these decisions, the ECtHR has deduced a very far-reaching right to strike from Article 11 ECHR (freedom of assembly).

These decisions have attracted considerable attention, including in Germany. Not only numerous lower courts, but also the Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) have recently had to deal with the right to strike. The BVerfG had to rule on the constitutionality of the ban on strike action for civil servants, and in so doing, the judges had to take into account the provisions of Article 11 ECHR, as well as related decisions by the ECtHR. However, in its decision, on 12 June 2018, the BVerfG showed an unwillingness to abandon the German civil service strike ban to the provisions of Article 11 ECHR. This, however, is not surprising, given that the German right to strike and the civil service strike ban are strongly influenced by tradition, and have so far been regarded as an inviolable sphere of domestic law. This is reason enough to take a closer look at the right to strike provided for in Article 11 ECHR, and its influence on German national law.

First, a closer look will be taken at the case law history, in particular the Demir and Baykara and Enerji Yapi-Yol Sen decisions and the German courts’ reactions to these (section 2). Thereafter, the binding effect of the Charter provisions will be examined, from both the ECHR perspective and a national constitutional perspective (section 3): it is especially important to adopt a constitutional perspective, as the impact of the ECHR on the German legal system is largely determined by constitutional law.