EHRM, 14-12-2023, nr. 59433/18, nr. 59477/18, nr. 59481/18, nr. 59494/18

At the relevant time, the four applicants were State school teachers with civil servant status employed by different German Länder. They were members of the Trade Union for Education and Science. They all participated in strikes, which included a demonstration, organised by that union during their working hours in order to protest against worsening working conditions for teachers. They were subsequently reprimanded or fined in disciplinary proceedings for having breached their duties as civil servants by participating in the strikes during their working hours.

In the case of Ms Humpert (the first applicant), a primary school teacher, the Schleswig-Holstein Ministry for Education and Culture, relying on Article 33 of the Basic Law (see paragraph 39 below) and sections 34 and 47 of the Civil Servants' Status Act (Beamtenstatusgesetz, see paragraph 48 below), issued a disciplinary decision against her on 5 July 2011. It reprimanded her for having participated in a strike on 3 June 2010 to protest, in particular, against the deterioration of working conditions for teachers and the prolongation of working hours, and for not having taught one lesson as a result. In the subsequent proceedings it was found that the first applicant had in fact failed to teach two classes.

In the cases of Ms Wienrank (the second applicant), a vocational school teacher, and of Mr Grabs (the third applicant), a secondary school teacher, the Lower Saxony School Authority issued a disciplinary decision against them on 10 and 11 January 2011 respectively. Relying on Article 33 § 5 of the Basic Law and sections 34 and 47 of the Civil Servants' Status Act read in conjunction with section 67 § 1 of the Lower Saxony Civil Servants Act (see paragraph 48 below), it imposed an administrative fine of 100 euros (EUR) on each of the applicants for unauthorised absence from work. It noted that the applicants had participated in a strike on 25 February 2009 and thus had not given their lessons (some five each) on that day. The aims of the strike included the securing of a collective agreement, notably providing for higher remuneration, for private-law employees (Angestellte im öffentlichen Dienst, hereinafter ‘contractual State employees’) in the public educational sector and the transposition of the results of that agreement into the legislation covering civil servants in that sector.

In the case of Ms Dahl (the fourth applicant), a secondary school teacher, the Cologne District Government issued a disciplinary decision against her on 10 May 2010. Relying on Article 33 § 5 of the Basic Law and section 83 § 1, first sentence, read in conjunction with section 79 § 1, first sentence, of the North Rhine-Westphalia Civil Servants' Status Act (see paragraph 48 below), it imposed an administrative fine of EUR 1,500 for her unauthorised absence as a civil servant during 12 lessons owing to her participation in strikes on 28 January and 5 and 10 February 2009. The aim of the strikes was the same as that in the cases of the second and third applicants.

The applicants' actions in the administrative courts to have the disciplinary decisions set aside were ultimately to no avail.

All the administrative courts found that the applicants had breached their professional duties by participating in strikes. The traditional principles of the career civil service (hergebrachte Grundsätze des Berufsbeamtentums) under Article 33 § 5 of the Basic Law restricted civil servants' freedom of association under Article 9 § 3 of the Basic Law (see paragraph 38 below) by laying down a prohibition on strike action.

At first instance, the Schleswig-Holstein, Stade and Osnabrück Administrative Courts — in judgments of 8 August 2012 (first applicant), 6 December 2012 (second applicant) and 19 August 2011 (third applicant) — upheld the respective disciplinary decisions against the first, second and third applicants. Having regard to the judgments of this Court in Demir and Baykara v. Turkey ([GC], no. 34503/97, ECHR 2008) and in Enerji Yapı-Yol Sen v. Turkey (no. 68959/01, 21 April 2009), they considered that, even assuming that the prohibition on strikes by civil servants did not comply with Article 11 of the Convention, that prohibition was part of the essence of the constitutional principles enshrined in Article 33 §§ 4 and 5 of the Basic Law, which could not be altered by an interpretation of the Basic Law in line with provisions of public international law such as Article 11 of the Convention. By contrast, the Düsseldorf Administrative Court, in a judgment of 15 December 2010 (fourth applicant), considered that the employing State entity had to avoid a breach of Article 11 of the Convention by discontinuing the disciplinary proceedings.

On appeal, the Lower Saxony Administrative Court of Appeal, in a judgment of 12 June 2012 in the third applicant's case, found that the prohibition on strikes by civil servants was part of the essence of the constitutional principles enshrined in Article 33 §§ 4 and 5 of the Basic Law which could not be altered by an interpretation of the Basic Law in line with provisions of public international law such as Article 11 of the Convention. No appeal on points of law lay against that judgment.

By order of 16 May 2013 the Lower Saxony Administrative Court of Appeal rejected the second applicant's request for leave to appeal against the Administrative Court's judgment in her case, finding that it had comprehensively addressed the relevant questions in its judgment of 12 June 2012 in the third applicant's case.

In the fourth applicant's case, on an appeal by the competent authority, the North-Rhine Westphalia Court of Appeal, in a judgment of 7 March 2012, overturned the Administrative Court's judgment. In a judgment of 27 February 2014, the Federal Administrative Court, on the fourth applicant's appeal on points of law, found that the disciplinary decision against the fourth applicant, which had ceased to be valid as she had since left the civil service at her own request, had as such been lawful. The administrative fine imposed on her, in order for the amount to be appropriate, should have been fixed at EUR 300. Referring to the judgment of this Court in Enerji Yapı-Yol Sen (cited above, § 32), the Federal Administrative Court considered that, in view of her tasks in the public service, the fourth applicant had had a right to participate in strikes under Article 11 of the Convention. However, Article 33 § 5 of the Basic Law could not be interpreted in a Convention-compliant manner as the prohibition on strikes by civil servants concerned the essence of the status of civil servants. The legislature was therefore called upon to resolve this conflict between the Basic Law and the Convention, with the prohibition on strikes by civil servants under Article 33 § 5 of the Basic Law remaining valid in the meantime.

The Schleswig-Holstein Administrative Court of Appeal rejected the first applicant's appeal by a judgment of 29 September 2014. By an order of 26 February 2015 the Federal Administrative Court rejected the first applicant's request for leave to appeal on points of law by reference to its judgment of 27 February 2014 in the fourth applicant's case.

According to the information available to the Court, the vast majority of the thirty-five member States surveyed provide for different statuses of employment in the public sector, with a mixture of employment under public law, in particular the civil service, and employment under private law. The grounds for a particular employment status relate essentially to the type of employer, the nature of the duties and the recruitment procedure. In particular, civil servants under public law, unlike other public sector employees, perform duties of public authority in a public administration and are recruited on the basis of a competition.

All of the thirty-five member States surveyed impose bans or restrictions on the right to strike of certain categories of public sector workers. Five States impose a ban on the right to strike for civil servants generally, with such a ban being based on the State's conception of the civil service and on the duties performed by a civil servant in public authority positions, while being intended to avoid damaging or hampering the functioning of public authorities. Other States impose bans and restrictions on specific, narrower categories of public sector workers on the grounds that they perform activities which are essential for the State or provide services that are of vital importance for society. Commonly, strikes are prohibited in the military, police, security services and often also in the justice system, prison service and diplomatic service. The rationale for a ban on strikes in these areas is that they are at the core of State authority and relate to tasks which are essential for the functioning of the State and for the protection of national security and public order/safety. In a number of States strikes are further banned or restricted in order to ensure the continuity of vital public services, such as the medical service, air traffic control, fire and rescue services. Minimum services can be required in areas such as public transport, waste management, power and heat supply, and telecommunications. The reasons for these prohibitions and restrictions relate to the need to secure the protection of life, health, personal security and public safety.

State school teachers have the status of civil servant in eight of the thirty-five member States surveyed, in seventeen States their employment is governed by a private-law regime and/or special legislation and in ten States more than one status exists. Teachers in the latter group of States are not able to choose their employment status as it is determined by the type of school in which they work and the legal regime applied to them. It appears from the material available to the Court that there is no prohibition on strikes by State school teachers in any of the member States surveyed, it being noted that State school teachers were previously granted civil servant status and were prohibited from striking in Denmark (see paragraph 94 below). The exercise of this right can, however, be made subject to certain conditions (e.g. union membership, duty to secure a minimum service, obligatory prior conciliation procedure). In States where different employment statuses for State school teachers exist, the right to strike applies in principle equally to teachers with civil servant status and those whose employment is governed by private law.

Alternative means of protecting employment-related rights in the case of a strike ban include conciliation and mediation procedures, collective bargaining and negotiation, representation through professional bodies (which the government may have to consult) and the possibility in some States of bringing court proceedings in respect of remuneration. Favourable conditions of service for civil servants are also seen in some of these States as a form of compensation.

The High Contracting Parties to the Convention have undertaken ‘to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention’ (Article 1 of the Convention). It is the duty of the Court to ensure the observance of the engagements undertaken by the Contracting States (Article 19 of the Convention). In accordance with Article 32 of the Convention, the Court provides the final authoritative interpretation of the rights and freedoms defined in Section I of the Convention (see Juszczyszyn v. Poland, no. 35599/20, § 208, 6 October 2022, and Opuz v. Turkey, no. 33401/02, § 163, ECHR 2009).

The Court reiterates in this connection that its rulings serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (see Jeronovičs v. Latvia [GC], no. 44898/10, § 109, ECHR 2016, and Konstantin Markin v. Russia [GC], no. 30078/06, § 89, ECHR 2012 (extracts), with further references).

As the Court has repeatedly stated (see, among other authorities, Grzęda v. Poland [GC], no. 43572/18, § 340, 15 March 2022), Contracting Parties should abide by the rule-of-law standards and respect their obligations under international law, including those voluntarily undertaken when they ratified the Convention. The principle that States must abide by their international obligations has long been entrenched in international law; in particular, ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’ (see the Advisory Opinion of the Permanent Court of International Justice on Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, quoted in paragraph 52 above). The Court further observes that, under the Vienna Convention on the Law of Treaties, a State cannot invoke its domestic law, including the Constitution, as justification for its failure to respect its international-law commitments (see Article 27 of the Vienna Convention on the Law of Treaties, quoted in paragraph 51 above).

It follows from the aforementioned principle of international law as well as, inter alia, from Articles 1, 19, 32 and 46 of the Convention, that the Contracting Parties must fulfil the obligations voluntarily undertaken by them when they ratified the Convention (see Juszczyszyn, cited above, §§ 208–209). As the Court does not engage in matters of domestic constitutional interpretation (see Grzęda, cited above, § 341), it is for the Contracting Parties to choose the manner in which they fulfil their obligations under the Convention (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 88, ECHR 2009).

The applicants complained that the disciplinary measures against them for having participated in a strike during their working hours, as well as the general prohibition on strikes by civil servants, on which those measures were based, had violated their right to freedom of assembly and association as provided for in Article 11 of the Convention, which reads as follows:

The applicants complained that as teachers with civil servant status, against whom disciplinary measures had been taken following their participation in strikes, they had suffered discrimination in the enjoyment of their Convention rights compared to teachers employed under the private-law regime, who had not been disciplined for such participation. They relied on Article 14 read in conjunction with Article 11 of the Convention.

The Government objected that the applications were inadmissible in this respect as the applicants had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. The applicants had complained neither expressly nor in substance about a breach of Article 14 of the Convention or a breach of the corresponding constitutional right to equal treatment (Article 3 of the Basic Law) before the Federal Constitutional Court.

The applicants asserted that they had exhausted domestic remedies. They had raised in substance a complaint about a difference in treatment of teachers with civil servant status without a right to strike and teachers employed under the private-law regime with a right to strike throughout the proceedings before the domestic courts, including the Federal Constitutional Court. It had not been necessary to expressly refer to the legal provisions concerned (Article 14 of the Convention and Article 3 of the Basic Law). To support their claim, the applicants referred to the following statements in the constitutional complaint by the third applicant, Mr Grabs:

The Court reiterates that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court's case-law it is not always necessary for the Convention to be expressly invoked in domestic proceedings, provided that the complaint is raised ‘at least in substance’. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court's case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant's legal arguments for the purposes of determining whether the complaint submitted to the Court has indeed been raised beforehand, in substance, before the domestic authorities. That is because ‘it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument’ (see Hanan v. Germany [GC], no. 4871/16, § 148, 16 February 2021).

The Court notes that all four applicants were legally represented before the Federal Constitutional Court and they all lodged separate constitutional complaints. They presented very comprehensive and detailed arguments, and relied extensively on the case-law of this Court, the practice of the ECSR and on international labour law as interpreted by the competent monitoring bodies, in support of their claim that they had to be granted a right to strike as teachers with civil servant status who did not hold functions involving the exercise of core elements of public authority; they alleged that the administrative courts had failed to interpret national law in line with these European and international standards and had thereby violated Article 9 § 3 of the Basic Law and Article 11 of the Convention (see paragraph 19 above). The Court observes that three of the four applicants did not even claim before this Court that they had made any submissions relating to an alleged discrimination compared to employees under a private-law regime, despite an explicit request by the Court to refer to the relevant parts of their constitutional complaints. Instead, the applicants referred to the aforementioned statements contained in the constitutional complaint of the third applicant alone. The Court observes that that constitutional complaint, which was prepared by two lawyers, runs to a total of 149 pages and the legal arguments in respect of the alleged Article 11 violation are raised in a very thorough and detailed manner. The first of the two aforementioned statements is made in the part summarising the third applicant's submissions before the administrative court (on page 8 of the constitutional complaint). The second statement is made in the part of the constitutional complaint which thoroughly discusses this Court's case-law on Article 11 and the transferability of that case-law to civil servants in Germany (on page 132 of the constitutional complaint); the statement itself explicitly refers to Article 11 § 2 of the Convention.

The Court considers that the inclusion, in passing, of the two aforementioned statements in the third applicant's submissions — which are characterised by very comprehensive and detailed submissions in respect of an alleged violation of Article 11 of the Convention — cannot be considered as a sufficiently substantiated discrimination complaint which would legitimately lead to the expectation that the Federal Constitutional Court would entertain such complaint. There was no comprehensive argument as to why the applicant, in his view, had a right to strike based on the fact that he would otherwise be discriminated against compared with contractual State employees. The third applicant's entire constitutional complaint was framed as alleging a violation of Article 9 § 3 of the Basic Law and Article 11 of the Convention — to which the Federal Constitutional Court responded in great detail. It would run counter to the purpose of the exhaustion rule if the two aforementioned statements in passing were to be deemed sufficient — not least given that the submission was extremely thorough with respect to Article 11 — for the purposes of exhausting domestic remedies in respect of an Article 14 complaint. As could be expected from the way the third applicant's constitutional complaint was framed, the Federal Constitutional Court exclusively and extensively addressed the alleged violation of Article 11 of the Convention, but did not address Article 14 of the Convention or Article 3 of the Basic Law. It would therefore not be in line with the purpose of the exhaustion rule if a case that was argued as an Article 11 case by the applicants at the domestic level and which was thoroughly examined with respect to that Article by the Federal Constitutional Court were now to be examined, for the first time under Article 14 in conjunction with Article 11, by this Court. In this connection, the Court reiterates that the assessment of domestic courts is particularly important in relation to discrimination complaints, as complex issues of comparators and justifications arise (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, 25 March 2014, and Advisory opinion on the difference in treatment between landowners' associations ‘having a recognised existence on the date of the creation of an approved municipal hunters’ association' and landowners' associations set up after that date [GC], request no. P16-2021-002, French Conseil d'État, § 66, 13 July 2022).

The Government's objection must therefore be allowed and this part of the application is declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

The applicants furthermore complained under Article 6 § 1 of the Convention that the Federal Constitutional Court had failed to address their essential argument that their right as civil servants to strike was recognised in international labour law.

The Government maintained that there had been no violation of Article 6 § 1 of the Convention. The Federal Constitutional Court had dealt extensively with the applicants' arguments relating to the constitutional rights of civil servants and, specifically, with the arguments relating to the effects of the Convention and of the relevant judgments delivered by the Court. In doing so, it also took into account the effects of international labour law on the Court's case-law. The effects of Germany's international obligations regarding a possible right to strike, including the obligations under international labour law, had thus been dealt with comprehensively.

The Court reiterates that while Article 6 § 1 does oblige the courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Perez v. France [GC], no. 47287/99, § 81, ECHR 2004-I). The Federal Constitutional Court extensively discussed this Court's case-law regarding trade-union freedom and, when doing so, explained that this Court took into account other international instruments when interpreting Article 11 of the Convention (see paragraph 32 above). The Court thus considers that the Federal Constitutional Court sufficiently dealt with the question of Germany's international obligations regarding a possible right to strike, including obligations under international labour law, and gave specific and explicit reasons for rejecting the applicants' claim that they had a right to strike (see Petrović and Others v. Montenegro, no. 18116/15, §§ 41 and 43, 17 July 2018).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible under Article 35 § 4.

All four applicants in the present case were, at the relevant time, State-school teachers with civil servant status under German law. They complained before the Court that the disciplinary measures against them for having participated in a strike, as well as the general prohibition on strikes by civil servants, on which those measures were based, had violated their right to freedom of assembly and association, as provided for in Article 11 of the Convention, which reads as follows:

In particular, the four applicants participated in strikes, which included a demonstration, organised by the Trade Union for Education and Science, of which they were members, during their working hours, in order to protest against worsening working conditions for teachers (see paragraph 8 of the judgment).

In accordance with the decision of 12 June 2018 of the Second Senate of the Federal Constitutional Court (FCC), all civil servants in Germany, including the applicants, are prohibited from participating in trade union or industrial action. In other words, there is a total ban on strike action concerning all civil servants, purely on account of their status.

The Court in its judgment rightly observes that the prohibition on strikes by civil servants, including teachers with that status, is based on their status and is absolute, adding that the restriction on the right to strike by German civil servants, including the applicants, can thus be characterised as severe in nature (see paragraphs 123 and 144 of the judgment).

While I voted in favour of point 1 of the operative provisions of the present judgment, declaring the complaint concerning Article 11 of the Convention admissible, and the remainder of the complaints inadmissible, I voted against point 2 of the operative provisions of the judgment, that there has been no violation of Article 11 of the Convention. I have a methodological, conceptual and substantive difficulty in subscribing to the judgment and in particular regarding its approach, leading as it does to the conclusion that there has been no violation of Article 11.

The right to strike is a collective human right. As Ruth Ben-Israel explains:[11]

The Court has recognised the right to collective bargaining as an essential element of the right to freedom of association under Article 11 § 1 (see paragraph 100 of the present judgment, and Demir and Baykara [GC], no. 34503/97, § 154, ECHR 2008). Furthermore, as the present judgment acknowledges, ‘the right to strike allows a trade union to make its voice heard and constitutes an important instrument for the trade union to protect the occupational interests of its members and in turn for the members of a trade union to defend their interests’ (see paragraph 104 of the judgment).

However, the judgment considers that the question whether a prohibition on strikes affects an essential element of trade-union freedom, because it renders that freedom devoid of substance in the circumstances — a question which the Court has so far left open — is a context-specific question that cannot therefore be answered in the abstract or by looking at the prohibition on strikes in isolation, but rather, requires an assessment of all the circumstances of the case, in consideration of the totality of the measures taken by the respondent State to secure trade-union freedom and a number of other aspects including individual rights (see paragraphs 109–110 of the judgment). Such an approach reminds one of the overall fairness approach (and the associated counterbalancing of rights) employed by the Court regarding the right to a fair trial under Article 6 of the Convention.

I respectfully hold a differing viewpoint on this matter. I consider that the right to strike is an indispensable component or element or aspect of the right to freedom of association and specifically trade-union freedom under Article 11 of the Convention in all circumstances[12]. The character and nature of the right to strike, as an element of freedom of association, cannot depend on specific circumstances and vary from case to case; that right is part of the ‘DNA’ — and norm of effectiveness — of freedom of association and should always be treated as such. It would be paradoxical for the right to collective bargaining to be recognised by the case-law (see Demir and Baykara, cited above, § 154) as an essential element of freedom of association, while the right to strike, which is intrinsically and inseparably associated with the right to collective bargaining, is not also considered an essential element of freedom of association in all circumstances, but rather depends on the circumstances of each case. As the applicants rightly argued in this connection (see paragraph 77 of the judgment):

Undoubtedly, therefore, there is a functional link between the right to bargain collectively and the right to strike[13].

The right to strike is a core value of a democratic society. Former UN Special Rapporteur for Freedom of Association and Assembly, Maina Kiai, in a UN Press Release (9 March 2017)[14], insightfully acknowledged and underlined that the right to strike is an intrinsic corollary of the fundamental right of freedom of association and that there is a link between the right to strike and democracy:

The link between strike action and democracy has further been elaborated by Jeffry Vogt, Janice Bellace, Lance Compa, K D Ewing, Lord Hendy QC, Klaus Lörcher and Tonia Novitz[15].

The judgment fails to see that striking is aimed at negotiations and collective bargaining, and that it is the right of collective bargaining which is also curtailed by the impugned measures[16].

It is pertinent to note that the word ‘including’ in Article 11 § 1 of the Convention shows that the brief enumeration of the sub-rights mentioned there is not an exhaustive one, therefore leaving room for the right to strike to be included therein. The interpretation made by the Court of freedom of association, as regards whether the right to strike is an element of that freedom, is very restrictive and runs counter to the principle of effectiveness, which requires that the rights should be interpreted and applied broadly, while any limitation to them should be interpreted narrowly and restrictively.

Article 8 of the International Covenant on Economic, Social and Cultural Rights of 1967, an international text seventeen years more recent than the Convention, adopts in verbatim in its paragraph 2, the second sentence of Article 11 § 2 of the Convention and it expressly provides in its paragraph 1(d) that States Parties to the Covenant undertake to ensure the right to strike (see also paragraph 53 of the present judgment). In addition, Article 22 § 1 of the International Covenant on Civil and Political Rights of 1966, though it does not expressly provide for a right to strike, has been interpreted by the UN Human Rights Committee as providing for such right (see also paragraph 54 of the present judgment). As the present judgment observes in paragraph 62, the Inter-American Court of Human Rights, drawing on international material, has stated that the right to strike could be considered a general principle of international law, being an ‘essential component’ of freedom of association and freedom to organise. It has considered, however, that the exercise of the right to strike could be restricted or prohibited, but only in the case of civil servants who serve as arms of public power and exercise authority on behalf of the State, together with workers in essential services (ibid). Vogt, Bellace, Compa, Ewing, Lord Hendy, Lörcher and Novitz strongly support with convincing arguments that the right to strike is recognised as customary international law[17].

I thus submit that the same approach as that of the Inter-American Court of Human Rights should be followed by the European Court of Human Rights. If the right to strike is a general principle of international law — which in my submission it is — it should be considered as such and be respected by all international and domestic courts. After all, the Convention is part of international law and should be interpreted in harmony with the general principles of international law, that being a function or aspect of the principle of effectiveness.

Furthermore, the United Nations Committee on Economic, Social and Cultural Rights in its observations in relation to Germany's obligations under International Labour Organisation Conventions No. 87 and 98 (ratified by Germany), on ‘the Freedom of Association and Protection of the Right to Organise’ and ‘the Right to Organise and Collective Bargaining Convention’, respectively, recalls, inter alia, that all public service workers, other than those engaged in the administration of the State, should enjoy collective bargaining rights and, in particular, to have recourse to strike action (see paragraph 56 of the judgment).

Importantly, the European Trade Union Confederation, the German Trade Union Confederation and the Trade Union for Education and Science, all submitted, as third-party interveners in the proceedings before the Court, that an absolute prohibition on strikes by all civil servants, and in particular teachers who do not perform duties involving the exercise of public authority, due to their status alone, violates Article 11 of the Convention (see paragraph 95 of the judgment), thus, in effect, considering that the right to strike is an essential element of the right to freedom of association.

The critical or crucial passages from the judgment against which my dissent lies, are those of paragraphs 114–115, which read as follows:

While the judgment acknowledges that the ban on strike action for civil servants, including teachers with civil servant status, as the applicants were at the relevant time in the present case, is an absolute, total and general prohibition on the right to freedom of assembly and association, based only on the status of persons as civil servants, it nevertheless fails to consider that such ban, by its nature, cannot have any exceptions and is not susceptible or subject to any proportionality or balancing test, irrespective of the facts and circumstances of the case. An absolute or blanket ban is an unconditional ban, and, by its nature, is the epitome of inflexibility, indeed inflexibility in the extreme, leaving no room for any exception or weighing-up of interests. A blanket ban is a comprehensive and complete prohibition, encompassing all aspects or elements relating to the subject matter, without exception. Consequently, the judgment fails to see that such an absolute ban automatically breaches Article 11 § 1 of the Convention, without any further examination being required under Article 11 § 2. An absolute prohibition, restriction or ban amounts to a complete negation of the right concerned. Instead the judgment considers the ban on strike action for civil servants as a restriction falling within the first sentence of Article 11 § 2 of the Convention and examines it under the requirements of that provision (see paragraphs 113–147).

Accordingly, such treatment of an absolute and total prohibition is conceptually erroneous, leading to an entirely flawed interpretation and application of Article 11, running counter to the principle of effectively protecting the right concerned, the principle of effectiveness, which militates against any inflexibility and formalism. For example, it makes no sense to examine whether an absolute ban is necessary in a democratic society, using the proportionality test, as the judgment does in paragraphs 119–147, when such a ban, by its very nature, is not capable of passing that test. More simply, a complete negation of a right, which is the effect of the absolute ban in the present case, cannot, by its nature, be proportionate. In my humble view, since no proportionality test can be associated with an absolute ban, not only is it irrelevant, but also it does not make sense for the judgment in the first place to deal with the right of civil servants to be provided by the State with adequate maintenance (‘the principle of alimentation’, see paragraphs 43–46 of the judgment) and the other rights conferred upon civil servants (referred to in paragraphs 133–138 of the judgment), and, subsequently, to consider these rights, which give rise to status-related benefits and advantages, as capable of counterbalancing the absolute ban. In any event, an absolute ban on strikes directly and automatically violates the right to freedom of assembly and association, leaving no room for any further examination and evaluation.

I contend that the principle of effectiveness, through its defensive operation, functions as the immune system of the right under Article 11 § 1. It prevents an absolute prohibition from finding a place or establishing a presence in the first sentence of Article 11 § 2, rather treating such a ban as a pathogen or parasite.

The Court cannot and should not try to alter the nature of an absolute prohibition, a total negation in breach of Article 11, by treating it as a limitation or restriction falling under the first sentence of Article 11 § 2. Such an approach, apart from being conceptually wrong, is also a non-pragmatic one.

Another finding in the judgment which is truly problematic for me is that, in its paragraph 144, after reiterating ‘that the impugned restriction on the right to strike of civil servants, including teachers with that status, such as the applicants in the present case, was severe in nature’, the Court holds:

I really find it extremely difficult to accept that the choice of means by which to exercise a human right or a fundamental freedom should not depend on the will of the holder of the right or the freedom in question, but on the will (‘freedom’) of the Contracting State. The human rights and fundamental freedoms safeguarded in the Convention are meant to be enjoyed by individuals and not by the States. For the same reason, and in view of everything I have explained in this opinion, I am unable to subscribe to the conclusion of the judgment (paragraph 147):

Contrary to what is stated in paragraph 147 of the judgment, as has been explained above, an absolute ban on strikes cannot be examined under the ambit of the first sentence of Article 11 § 2; therefore, the respondent State is not afforded any margin of appreciation to take such a decision under this provision.

Even if I were to follow the view of the Court that the character of the right to strike, as an essential element of trade-union freedom, is context-specific, again, I would disagree with its approach of examining the absolute ban within the first sentence of Article 11 § 2, because such an approach cannot enable an absolute ban on strikes to be examined, as if it were a limitation or restriction falling under that first sentence; it is the absolute ban which is not susceptible to any proportionality test under the first sentence of Article 11 § 2, and not the character of the right to strike as an essential element of the right to freedom of association.

To analyse paragraph 114 of the judgment, quoted above, what the Court says there is that it ‘does not consider it necessary to determine whether the applicants as teachers with civil servant status could be said to be ‘members of the administration of the State’ for the purposes of Article 11 § 2 in fine’, because ‘the Government [had] argued that the impugned measures were justified under the first sentence of Article 11 § 2 as they served in particular to protect the rights and freedoms of others’, and because ‘the Government [had] stated that they were not primarily relying on the second sentence of Article 11 § 2’. The Court in the next sentence of the judgment reiterated, however, ‘that the concept of ‘the administration of the State’ should be interpreted narrowly, in the light of the post held by the official concerned’.

With all due respect, the above are unconvincing arguments to explain why the Court decided the present case by relying merely on the first sentence of Article 11 § 2. The Government did not argue that they were not relying at all on the second sentence of Article 11 § 2. What they argued is that they were not primarily relying on that second sentence, implying that they were also relying on it to some extent. Importantly, the German Federal Constitutional Court clearly based its decision of 12 June 2018 on both the first and second sentences of Article 11 § 2. This is clear from paragraph 176 of the said decision:

The Court decided to examine the issue under the first sentence of Article 11 § 2, accepting the Government's stance that the impugned measures were justified under that first sentence, as they pursued legitimate aims and served in particular to protect the rights and freedoms of others and to provide good administration (see paragraphs 114, 118 and 136 of the judgment).

The Court avoided examining the issue also under the second sentence of Article 11 § 2, while showing, at the same time, its difficulty to accept that the measure might fall under that second sentence, if it had been required to so determine. This difficulty is reflected in the following words of the Court: ‘The Court reiterates, however, that the concept of ‘the administration of the State’ [in Article 11 § 2 in fine] should be interpreted narrowly, in the light of the post held by the official concerned’ (see paragraph 114 of the judgment).

With all due respect, since the Court examined the issue under the first sentence of Article 11 § 2, such an approach was absolutely wrong, and there is no need to elaborate again on what has been said above under part III of this opinion, namely that no absolute prohibition can be treated as a restriction falling within the ambit of the first sentence of Article 11 § 2.

I have argued elsewhere that ‘[u]ntil now we have known that the Convention makes provision for some absolute rights, but not for absolute restrictions. An absolute restriction leads to the death of a right or to no right at all’[18]. However, in the whole of the Convention and the Protocols thereto, one absolute restriction can be found, which appears to be the only one, namely that provided for by the second sentence of Article 11 § 2.

In my submission, an absolute prohibition may fall within the second sentence of Article 11 § 2 under two conditions:

Such a prohibition, if lawful, can be an absolute one within the margin of appreciation of the relevant member State, because unlike the first sentence of Article 11 § 2, according to the second sentence the restrictions do not have to be ‘necessary in a democratic society’ (a phrase which is missing from the second sentence of Article 11 § 2), and, therefore, do not entail a requirement of proportionality. The word ‘lawful’ in Article 11 § 2 in fine means that ‘a restriction need only have a basis in national law and … [does] not also entail a requirement of proportionality’[19]. If the necessity requirement were also to apply regarding the second sentence of Article 11 § 2, then that sentence would be obsolete, as it would not add or differentiate anything to or from the first sentence. However, it has also been argued that ‘the mere fact that they belong to the categories concerned [i.e., citizens belonging to either of the three categories in Article 11 § 2 in fine] does not imply that a restriction will need to be considered per se as justified’[20]. Contrary to this view, it is clear to me that the Contracting Parties to the Convention are not precluded from imposing on members of the three categories mentioned in the second sentence of Article 11 § 2, lawful restrictions on the exercise of their rights under Article 11 § 1, even if this entails an absolute prohibition. It is another matter, of course, whether a democratic and social State should deem it appropriate, 73 years after the enactment of the Convention, to exercise its discretion in imposing a restriction on the members of the three categories concerned in the form of a blanket ban.

Thus the second sentence of Article 11 § 2 is lex specialis in relation to its first sentence: it is an exception to its first sentence, thus an exception to an exception to the right to freedom of assembly and association, as it is not subject to the principle of proportionality.

From my standpoint, the first and second sentences of Article 11 § 2 are mutually exclusive. An absolute prohibition, which falls within the ambit of Article 11 § 2 in fine, cannot also fall within the ambit of Article 11 § 2, first sentence, for two reasons: firstly, Article 11 § 2 in fine, as said earlier, is lex specialis in relation to the first sentence of Article 11 § 2, and, therefore, they cannot coexist regarding the same issue; and, secondly, because an absolute prohibition cannot, by its nature, at the same time be a restriction falling within the first sentence of Article 11 § 2, which does not allow for such blanket bans.

It is a logical fallacy, breaching the fundamental Aristotelian principle of non-contradiction[21], to make the contrary argument — one that the Government, the Court and the German Federal Constitutional Court seem to accept — that the issue may come under both the first and second sentences of Article 11 § 2 (irrespective of the question whether it falls primarily under the first sentence of Article 11 § 2 and secondarily under the second sentence).

The impugned measures could be justified under the second sentence of Article 11 § 2, only if they (a) were lawful, and (b) affected members of one of the three groups mentioned in this provision, namely, the armed forces, the police or the administration of the State.

It is not necessary to examine the first requirement (lawfulness), because the second requirement (membership of one of the three groups), as will be explained, does not apply in the present case.

The applicants in the present case, being State-school teachers with civil servant status, do not belong to the armed forces or the police and the question arises whether they are members of the administration of the State. The Court, in paragraph 114 of the present judgment, as quoted above, reiterates that the concept of ‘the administration of the State’ should be interpreted narrowly and restrictively, in the light of the post held by the official concerned, and refers to its previous relevant case-law[22].

This is absolutely in line with the principle of effectiveness, which, as said earlier, requires a broad interpretation of the right in question, and a narrow and restrictive interpretation of its limitations or restrictions. In this connection, the Court in Demir and Baykara (cited above) held that ‘limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights’ (ibid., § 146). On this point, Professor Schabas pertinently argues[23]:

Undoubtedly, an interpretation of the ‘members of the administration of the State’, as covering all civil servants in a country indiscriminately, would be not merely a non-narrow interpretation, but in fact a very broad one. Furthermore, such interpretation would run counter to both the literal and teleological interpretations of the final sentence of Article 11 § 2 and of Article 11 in its entirety, because if the Convention drafters had intended that the final sentence of Article 11 § 2 should cover all civil servants, they would not imply this under the concept of ‘administration of the State’, but instead would state this clearly. Besides, if this sentence were to apply to all employees of the State there would be no need to refer specifically to three specific categories. Thus it is clear from the second sentence of Article 11 § 2 that there should be no absolute ban under Article 11 in cases of civil servants other than in the three categories mentioned therein, namely members of the armed forces, the police and the administration of the State, and therefore to interpret and apply this sentence as imposing an absolute ban on all civil servants would be a contra legem interpretation and application of the Convention, breaching the principle of effectiveness and Article 11. Furthermore it would be absurd to extend the scope of the second sentence of Article 11 § 2 to all civil servants, while its text expressly limits its application only to the three categories.

In this connection, the argument made by the applicants is well summarised in paragraph 79 of the judgment and is very convincing:

On the basis of what has been argued above, an interpretation of Article 11 § 2 in fine, covering under the concept ‘the administration of the State’ all civil servants would not only be a very broad interpretation leading to unreasonable and absurd results, but it would also run counter to the principle of effectiveness, including its aspect of effet utile, as well as to the Latin maxims of construction, namely, noscitur a sociis and ejusdem generis.

Since the second sentence of Article 11 § 2 is an exception to an exception, namely, to the first sentence of Article 11 § 2, the aspect or function of the principle of effectiveness, requiring that limitations or restrictions to rights should be interpreted narrowly and restrictively, should apply with even more severity and extreme caution in the case of the limitation provided for in the second sentence of Article 11 § 2 than in the case of the limitation provided for in the first sentence.

Sara Jötten and Felix Machts remarked in the conclusion to their pertinent article[24] that:

In my humble view, the different treatment and conclusion of the present case in relation to Demir and Baykara (cited above) cannot be justified at all. What matters is not so much any particularities of the German civil service system, but more importantly the consistent interpretation and application of Article 11 to both of these cases. Stated otherwise, there should be no double standards or measures. With all due respect, in view of the arguments expressed in the present opinion, the judgment of the Court in the present case does not provide the best way to ‘stabilise’ the German civil service once and for all.

Irrespective of the valid arguments presented above, namely that the issue falls under neither the first sentence nor the second sentence of Article 11 § 2, and irrespective of the Court's implicit suggestion that the issue might not fall under the second sentence because restrictions must be interpreted narrowly, the Court ought to have started by examining the case from the angle of the second sentence of Article 11 § 2, which it did not do. That would have meant taking into account the fact that different considerations apply for each sentence of Article 11 § 2 and the fact that the second sentence is more specific in nature than the first, and also, as said earlier, the fact that the second sentence is an exception to an exception.

As argued above, it is contradictory for the judgment, while admitting that the ban was an absolute one in character, to nevertheless treat it as a non-absolute one, by examining it under the first sentence of Article 11 § 2. Apart from this, it is also paradoxical and nonsensical that, instead of examining the absolute ban under the second sentence of Article 11 § 2, where an absolute ban may have a place if it were to fall within one of the three categories of civil servants, the judgment proceeds to examine it under the first sentence of Article 11 § 2, where an absolute ban has no place.

If an absolute ban cannot be justified within the second sentence of Article 11 § 2 in relation to civil servants other than members of the three categories expressly mentioned in that sentence, it is absolutely clear that it cannot be justified within the first sentence of Article 11 § 2, which does not allow for absolute bans.

Regrettably, the Court has left open once again[25] an important issue, namely, whether teachers with civil servant status are considered to be part of ‘the administration of the State’.

Before concluding, I wish to emphasise that Article 11 of the Convention should be read according to the principle of external coherence or harmony — an aspect of the principle of effectiveness — which means that the Convention must be interpreted in line with international law, of which it is a part[26]. The judgment, under Section entitled ‘II. International Law and Practice’ (see paragraphs 51–64), refers to a significant number of international texts and materials. However, not only do they fail to support the approach taken by the Court in the present case, but, on the contrary, the Court's approach is not in line with them. In particular, as the applicants and the third-party interveners referred to in paragraph 14 of the present opinion also submitted, the Court's approach is not in line with Article 22 of the International Covenant on Civil and Political Rights (ICCPR — see paragraph 54 of the judgment), Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR — see paragraph 53 of the judgment), the law of the International Labour Organisation (ILO — see paragraphs 55 and 56 of the judgment), Article 6 § 4 of the European Social Charter (see paragraphs 57–60 of the judgment), and Article 28 of the Charter of Fundamental Rights of the European Union (see paragraph 61 of the judgment), as interpreted by the competent monitoring bodies, or with the case-law of the Inter-American Court of Human Rights, which recently found that the right to strike constituted a ‘general principle of international law’ (see paragraph 62 of the judgment) and argued that the right to strike should be recognised as an essential element of freedom of association.

Regrettably, while the Court refers to international law and practice, in the ‘Law’ part of its judgment, it nevertheless fails to discuss and take them into account later on when it deals with the merits of the case and ultimately adopts an approach which is inconsistent with them.

In addition to my submission that the right to strike is an essential element of the right to freedom of association, it can be concluded that the impugned measures against the applicants could not be justified under either of the two sentences of Article 11 § 2 and that they, therefore, violated Article 11 § 1 of the Convention.

In particular, the impugned measures cannot not be justified under the first sentence of Article 11 § 2, because they were based on an absolute prohibition which does not have a place under this sentence, and they could not be justified under the second sentence of Article 11 § 2, because they do not concern members of any of the three groups specified therein.

Since the absolute ban in question fell neither under the first nor under the second sentence of Article 11 § 2, it directly confronted the right in question that is safeguarded under Article 11 § 1, which applies to ‘everyone’ and therefore also to civil servants (see also Article 14 of the Convention on the prohibition of discrimination). Stated otherwise, the absolute ban in question, not falling under either of the two sentences of Article 11 § 2 and being inflexible in nature, per se and automatically rendered ineffective the right to freedom of peaceful assembly and association and, therefore, violated Article 11 § 1 of the Convention.

In my humble opinion, the methodological approach used by the Court regarding Article 11, as well as the interpretation and application followed by it regarding the same Article, were erroneous and wrong.

With all due respect, I regret to argue that the four applicants have not obtained the protection under the Convention they deserved, and along with them, at least for the time being, all civil servants in Germany or elsewhere in Europe who are not members of the administration of the State, who wish to exercise their freedom of association and in particular their right to strike in the present or future. As said above, the ban imposed on the applicants' right to freedom of assembly and association was not only an absolute and total one, but also a general one. Here the following observation is warranted. The combination of the character of the ban as both an absolute and general one extending to all civil servants, thus all members of one sector of employees in society, namely, the public as opposed to the private sector, produces the problematic consequences of an absolute ban for a large number of persons in society with the effect that their rights under Article 11 may be violated. Consequently, the more general the application of an absolute ban, the larger the number of potential victims of an Article 11 violation.

The right safeguarded by Article 11, apart from being a civil right, is also a social one, with a predominant moral element, which requires careful and special consideration by the Court when interpreting and applying it.

With due modesty, I believe that the present judgment is not in line with the fundamental Convention principles of effectiveness and respect for human dignity, and is somehow a setback to the application of the doctrine that the Convention is a living instrument to be adapted to the present-day conditions of society and to the development of international law. Contrary to what the majority argue, the approach of the judgment is also not supported by the principle of subsidiarity, which affords a margin of appreciation to member States in line with the primary aim of the Convention, namely, the effective protection of human rights.

Protocol No. 15 to the Convention, by inserting the principle of subsidiarity in the Preamble to the Convention, enhances this principle, not by rendering the margin of appreciation of member States broader than before, but, on the contrary, by underlining in the Preamble the true meaning of the principle of subsidiarity, namely that the primary responsibility of the member States under the supervisory jurisdiction of the Court is to ensure the effective protection of human rights, thus ensuring that the principle of effectiveness is applied not only by the Court in the exercise of its supervisory power, but also by the member States. In this connection, the Court in Grzęda v. Poland[27] noted that the principle of subsidiarity imposed a shared or collective responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply domestic law in a manner that gives full effect to the Convention. In the present case, the domestic authorities not only overstepped their margin of appreciation, but engaged in an entirely erroneous methodological interpretation and application of Article 11, marginalising the relevant international law.

By way of conclusion, I would find that there has been a violation of the applicants' right to freedom of peaceful assembly and association, as provided for in Article 11 § 1 of the Convention. However, I see no need to address the issue of just satisfaction.