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.