Defusing a Brewing Conflict with the Constitution: Humpert and Others v Germany, Procedural Rationality, and the Right of Civil Servants to Strike

by Ignatius Yordan Nugraha

Civil servants are constitutionally prohibited from striking in Germany. This general prohibition also affects State school teachers who have a civil servant status. On 14 December 2023, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled in Humpert and Others v Germany that such a prohibition did not violate the right to freedom of association under Article 11 of the European Convention on Human Rights (ECHR). While the judgment may be criticised for side-lining the approach of other international human rights bodies, it represents the application of procedural rationality review par excellence. As I will argue in this post, this approach managed to avoid a direct conflict with the German Constitution.

Facts

The case concerned four state school teachers with civil servant status (Beamte). They participated in strikes, together with teachers who are employed on a contractual basis (Angestellte), to protest against their worsening working conditions. As a result of the prohibition of civil servants from striking in Germany, disciplinary proceedings were instituted against them, resulting in reprimand or fines.

The applicants instituted a proceeding in the administrative courts to overturn the disciplinary decisions, but their efforts were in vain. They then lodged complaints at the Federal Constitutional Court (FCC), alleging a violation of the right to freedom of association. The FCC, however, eventually ruled against the applicants.

In rejecting the applicants’ plea, both the administrative courts and the FCC pointed to Article 33 § 5 of the Basic Law, which enshrines that ‘The law governing the public service shall be regulated and developed with due regard to the traditional principles of the professional civil service.’ According to these courts, the prohibition of civil servants from striking is intended to uphold these traditional principles.

The FCC specifically clarified that the right to freedom of association may be limited by other constitutional interests, including the traditional principles of the professional civil service. According to the Court, these principles can be traced back to the time of the Weimar Republic and include the duty of loyalty of civil servants, the principle of lifetime employment, the principle of alimentation (meaning that civil servants must be given appropriate remuneration), and the principle of the determination of civil servants’ salary by law. The right to strike is considered contrary to these principles, as German civil servants were granted a legally and financially secure position to ensure their duty of loyalty. Allowing such a right would thus call into question these constitutional principles (paras 23-26).

Judgment

The applicants tried to argue that the prohibition of civil servants from striking was not ‘prescribed by law’ under Article 11 § 2 ECHR. The ECtHR, however, accepted that this prohibition emanates from Article 33 § 5 of the German Constitution. Despite the lack of an explicit mention in the provision itself, the FCC has established in its case law for decades that Article 33 § 5 of the Basic Law implies the prohibition of civil servants from striking (para 116).

Turning to legitimate aim, the ECtHR agreed with the German government and the FCC that the prohibition was intended to maintain a stable administration, fulfil State functions, and ensure the proper functioning of the State and its institutions. Moreover, the Court also found this prohibition to fulfil the legitimate aim of protecting the right of others, specifically the right to education as enshrined under Article 7 § 1 of the Basic Law and Article 2 of Protocol No. 1 to the Convention (para 118). The crux of the case was thus whether the prohibition of strikes was necessary in a democratic society.

The Court did acknowledge that there is a ‘strong trend’ in the practice of international human rights monitoring bodies (including the International Labour Organisation, the Human Rights Committee, and the Committee on Economic, Social and Cultural Rights) that civil servants should not be prohibited from striking (paras 125-126). The Strasbourg Court also observed that this ‘trend’ is further ‘reflected’ in the practice of Member States of the Council of Europe (para 125). From thirty-five countries surveyed, only five imposed a general prohibition, and none of them prohibited State school teachers from striking (paras 66-67). However, although the German approach was inconsistent with the international and European ‘trends’, the ECtHR asserted that these trends were not decisive in determining whether Germany had overstepped its margin of appreciation (para 127).

Instead, it was clear that the Court would engage in a procedural rationality review (or process-based review). The Court referred to the mantra in Animal Defenders International that ‘As a matter of principle, the more convincing the justifications for the general measure, the lesser the importance that will be attached by the Court to its impact in the particular case’ (para 120).

In this respect, the ECtHR agreed with the German government that the contested prohibition ‘is a general measure rooted in the Basic Law, as interpreted by the Federal Constitutional Court, and reflects a long-standing democratic consensus in Germany as well as the outcome of the weighing-up and balancing of different, potentially competing, interests’ (para 142). Thus, the Strasbourg Court reiterated another mantra from Animal Defenders International that ‘the central question for the Court in assessing the proportionality of this measure is not whether less restrictive rules could have been adopted (…)’ (para 142). In other words, unlike the classical proportionality test, the crux of the matter was not whether Germany could have adopted another measure with minimum impairment to achieve the aim invoked, but rather whether ‘the constitutional legislature had acted within the margin of appreciation afforded to it’ (para 142).

The ECtHR then proceeded with its procedural rationality review. In this regard, the ECtHR was satisfied that Germany had ‘a variety of different institutional safeguards’ to ensure that civil servants can defend their rights and interests (para 144). For instance, civil servants’ trade unions have a right to participate in the drafting process of statutory provisions which determine the salary of career civil service. Civil servants also benefit from a constitutional right to ‘adequate maintenance’ that is enforceable in domestic courts. The ECtHR also pointed to a submission from the largest civil servants’ union in Germany that civil servants had already acquired all the possible benefits that could be gained from striking, thanks to their constitutional rights (para 144). Thus, the Court found that the constitutional prohibition on strikes did not render civil servants’ freedom of association devoid of substance (para 146).

Moreover, the Court distinguished Humpert from a 2009 Turkish case, where a circular prohibiting civil servants from striking was issued only five days before a national general strike and was formulated in general terms without striking any balance between the impaired rights and the competing interests. Instead, the ECtHR reiterated that the constitutional prohibition in Germany ‘is a general measure reflecting the balancing and weighing-up of different, potentially competing, constitutional interests’ (para 145).

The ECtHR is particularly satisfied that the German government had submitted ‘convincing justifications’ for the general constitutional prohibition. The Strasbourg Court also lauded the FCC for its ‘extensive assessment’ on the impact of the prohibition on the rights of the applicants. Furthermore, the Court found that the disciplinary sanctions imposed were not severe and pursued the legitimate aim of protecting the right to education, which is ensured by effective public administration. In this respect, the ECtHR praised the German domestic courts for having ‘adduced relevant and sufficient reasons to justify those measures, weighing up the competing interests in a thorough balancing exercise that sought to apply this Court’s case-law throughout the domestic proceedings’ (para 146).

Therefore, the ECtHR concluded that the impact of the constitutional prohibition on strikes did not outweigh the ‘solid and convincing justifications’ put forward by the domestic authorities (para 146), and that Germany had not overstepped its margin of appreciation (para 147). As a consequence, the Strasbourg Court concluded that there had been no violation of Article 11 ECHR.

The applicants also invoked the accessory right to non-discrimination under Article 14 ECHR read in conjunction with Article 11 ECHR. They alleged a discriminatory treatment, as teachers with contractual employment are allowed to strike. However, this argument was only raised in passing by the third applicant in his constitutional complaint at the domestic level (para 153). Hence, the ECtHR dismissed the claim due to the failure to exhaust domestic remedies (para 154).

Lastly, the applicants sought to invoke the right to fair trial under Article 6 § 1 ECHR. They claimed that the FCC had failed to address their argument concerning international labour law. This plea, however, was also in vain. The ECtHR asserted that while Article 6 § 1 ECHR obliges courts to justify their decisions, it cannot be read as obliging a detailed response to every argument raised. Instead, the FCC was deemed to have sufficiently addressed the issue of Germany’s international labour law obligations (para 157).

Two separate opinions are attached to the judgment. The first is a concurring opinion by Judge Ravarani. He explained that he decided to side with the majority because of the element of personal choice: teachers in Germany have the possibility to become either civil servants or public employees. For him, the choice to become a civil servant can be considered a waiver of the right to strike. Nonetheless, he questioned the other reasons put forward by Germany to justify the prohibition, such as whether education constituted an ‘essential service’.

The second is a dissenting opinion by Judge Serghides. He claimed that the right to strike is part of the ‘DNA’, or an indispensable component, of freedom of association. He also pled for the ECtHR to follow the international approach that recognises the right to strike of civil servants, as the Convention is part of international law and should be construed in harmony with the latter. Furthermore, since the prohibition constitutes a blanket ban, Judge Serghides argued that it should have been considered a violation of Article 11 ECHR.

Commentary

Humpert is a classic example of a procedural rationality review in action. The ECtHR refrained from assessing whether the prohibition was the least restrictive measure possible or whether there was a fair balance between the damages suffered by the applicants and the benefits obtained from the aim sought. Instead, the Strasbourg Court assessed whether the domestic authorities, particularly courts, have carefully applied Convention standards and balanced all the relevant interests. In this regard, the FCC has been lauded for its ‘extensive assessment’ (see para 146). As observed by Justine Batura, ‘The diligence shown by the Karlsruhe court in engaging with the Strasbourg jurisprudence on strike action (…) is remarkable – and its efforts have been rewarded.’

What is notable with Humpert is that the impugned prohibition is of a constitutional nature. It emanates directly from Article 33 § 5 of the Basic Law, and has become part of the constitutional jurisprudence of the FCC for long. In this respect, I have long wondered how the procedural rationality review would work with regard to constitutional provisions. I thought it would have been rather far-fetched for the Court to conduct a procedural rationality review of the decision-making process in constituent assemblies, particularly in light of the fact that many constitutions predated the ECHR itself.

In this regard, Humpert has provided a clarification: the Court would not review the drafting history of the constitution or the process behind a constitutional amendment, but rather how the domestic authorities have interpreted and applied the provision in light of Convention standards and balanced all the relevant interests. In this regard, States are called to continuously review the prohibition in light of present-day conditions (see Anchugov and Gladkov para 103). Indeed, much of the focus of the ECtHR in Humpert was on the FCC. In the end, the ECtHR was satisfied by the ‘fair balance’ struck in Germany, whereby teachers with civil servant status may not strike but enjoy various benefits not available to contractual employees (such as lifetime employment and the possibility to enforce the constitutional principle of alimentation in courts).

This judgment will definitely attract the criticism of human rights scholars, as the ECtHR seems to have side-lined international human rights standards that recognise the right of civil servants to strike. In fact, this is not the first time that the Strasbourg Court has diverged from the position of other international human rights bodies. What is also curious is that the Court has effectively rendered the concept of European consensus devoid of substance. Despite Germany’s isolated position with regard to the prohibition of State school teachers from striking, which normally should have narrowed the margin of appreciation it enjoyed, the ECtHR brushed aside these so-called ‘trends’ as being non-decisive. All in all, international and European consensus did not seem to matter in the face of procedural rationality.

Nonetheless, Humpert may be praised for defusing a potential conflict between the German Constitution and the ECHR. Let us imagine that the ECtHR did not engage in a procedural rationality review and instead followed the approach of other international human rights bodies. The judgment would come into direct conflict with the constitutional principles of the professional civil service. In this hypothetical scenario, a possible way to allow teachers with civil servant status to strike would be to call on the FCC to reinterpret these principles (or by amending the constitutional provision itself), which may raise concerns over judicial overreach.

This implies that the ECtHR’s procedural review serves to avoid direct conflicts between the ECtHR and domestic constitutional courts, as has transpired with the British Supreme Court and the Russian Constitutional Court. At the same time, the ECtHR’s approach here is more nuanced than a blind deference to conflicting constitutional norms. The onus is on the domestic authorities to prove that they have carefully applied Convention standards, balanced all the relevant interests, and continuously review the necessity and proportionality of the existing prohibition. As the case of Anchugov and Gladkov v Russia has shown, the ECtHR would not hesitate to find a violation for the failure of States to provide ‘valid and convincing reasons’ for maintaining a general restriction (para 103), even though the impugned measure was directly stipulated in the Constitution itself.

Conclusion

The case of Humpert may leave a bitter taste in mouth because the ECtHR seems to have side-lined international and European consensus in the face of German procedural rationality. At the same time, Humpert has shown that a procedural rationality review may serve to avoid a direct clash between the ECHR and domestic constitution. At a time when the ECtHR is increasingly under assault for allegations of judicial overreach and lack of democratic legitimacy, it is understandable why the Strasbourg Court has decided to embark on the path of subsidiarity and procedural rationality. In this context, perhaps Humpert is best appreciated from an institutional perspective, rather than one’s preferred normative outcome.