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The Federal Constitutional Court reviews strike ban for civil servants

The Federal Constitutional Court (Bundesverfassungsgericht) is currently dealing with four constitutional complaints by teachers who had been punished for participating in protests and warning strikes. A judgment is expected in several months (docket numbers: 2 BvR 1738/12, 2 BvR 1395/13, 2 BvR 1068/14, 2 BvR 646/15).

Under current German law, civil servants are not allowed to participate in strikes for more money and better working conditions. Civil servants fall within the scope of the so called civil service law, which is rooted in Article 33 para. 5 of the German Constitution (Grundgesetz). The “Principles of the Professional Civil Service” (Grundsätze des Berufsbeamtentums) also include the prohibition against resigning from work, i.e. to participate in strikes. This is due to the special relationship between a civil servant and the state, which is based on loyalty and which not only grants the civil servants special rights but also imposes duties.

Therefore, Interior Minister Thomas De Maizière regards the strike ban essential for a modern state. It “ensures the functioning of the administration for the citizens”. Particularly in crisis situations, the state must be able to rely on and even relocate its officials. They are committed to the common good and ensure that the state is functioning at all times. As argued by the Federal Government, a right to strike would put the entire system of the official service in question and would weaken the justification for civil servants’ state remuneration (alimentation principle).

The Unions, on the contrary, argue by reference to international law, including the European Convention on Human Rights (ECHR). They call for limiting the strike ban to officials with purely sovereign tasks, such as policemen, whereas other officials, who work in non-governmental positions, such as teachers or postmen, should be granted the right to strike. Even under Article 11 ECHR, the freedom of association and the right to strike is only limited for those officials with sovereign powers. The European Court of Human Rights confirmed this viewpoint in two judgements regarding cases from Turkey.

The Federal Administrative Court (Bundesverwaltungsgericht) was the last to deal with this problematic issue. It came to the conclusion that the German case law is not in line with European law. Therefore, the Federal Constitutional Court must now find a final answer. This decision will affect the approx. 1.8 million German civil servants.