CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES BRATZA, CASADEVALL AND VILLIGER

(Translation)

1. I voted without hesitation for finding a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.

2. In the following lines I wish to explain why I also voted with the majority in favour of finding a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the authority.

3. Paragraph 154 of the judgment reads as follows:

“... the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters , the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘ right to form and to join trade unions for the protection of [one ’ s] interests ’ set forth in A rticle 11 of the Convention , it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions . Like other workers, civil servants , except in very specific cases , should enjoy such rights , but without prejudice to the effects of any ‘ lawful restrictions ’ that may have to be imposed on ‘ members of the administration of the State ’ within the meaning of A rticle 11 § 2 – a category to which the applicant s in the present case do not, however, belong.”

4. The emphasis is thus placed on the “right to bargain collectively with the employer”.

5. It would be erroneous to infer that, for those working in the public service, “bargaining” has only one possible outcome: the “collective agreement”. It should not be forgotten that, in many legal systems, the statutory situation of civil servants is an objective situation, governed by laws and/or regulations, from which no derogation can be made by means of individual agreements. The introduction of an unlimited contractual dimension through Article 11 of the Convention would have a drastic impact on civil-service law in many States. The status of civil servant is based on the unification, organisation and efficiency of the public service.

6. The following comments have been made by Nicolas Valticos with regard to Convention No. 151 of the International Labour Organisation (ILO) and the Labour Relations (Public Service) Recommendation, 1978 (R159):

“335. A difficult issue in the area of trade-union rights, as more generally in the determination of employment conditions, is that of public officials, since they are employed to serve the State and the general interests of the nation, the State is not an employer like any other and, as depositary of the common interest, the State is not inclined, as an employer, to renounce its public-authority attributes, at least not systematically. This concept of relations between the State and its officials will vary, however, depending on the country. In some countries nowadays civil servants and other public officials – or most of them – tend to be treated as workers in the private sector, as regards, for example, collective bargaining and even the right to strike. In other countries, however, the traditional notions are still recognised. Another problem stems from the fact that the definition of civil servant varies in scope depending on the country, according to the extent of the public sector and to whether or not a distinction is made – and also to what degree – between civil servants as such (even distinguishing between sub-categories thereof) and public-sector employees in a broader sense ...

...

337. The recommendation ( N o. 159) which supplements the Convention ... leaves to national legislation, or to other appropriate means, the task of determining the various provisions (participation of public officials, procedure to be followed) for negotiation or other methods of determining terms and conditions of employment ...” ( Nicolas Valticos, Droit I nternational du T ravail , Droit du T ravail ( under dir ection of G.H. Camerlynck), vol . 8, 2nd ed n., Dalloz , 1983, pp. 264-66).

7. That being said, it is no longer in dispute – as is made clear by the judgment – that freedom of association exists in the public service. Similarly, trade union associations have become permanent partners in discussions on working conditions between State employees and public authorities. Such associations cannot be ignored by the State as employer, or more generally by public authorities.

8. Even though the right to bargain collectively can no longer be called into question as such (see paragraphs 42-44 and 49-52 of the judgment), certain exceptions or limits must nevertheless always be possible in the public service, provided that the role of staff representatives in the drafting of the applicable employment conditions or regulations remains guaranteed. For example, as indicated by the Court in paragraph 149 of the judgment:

“ According to the meaning attributed by the European Committee of Social Rights to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation , in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations.”

Similarly, the following provision is made by Article 7 of ILO Convention No. 151, quoted at paragraph 44 of the judgment:

“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees ’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.”

This provision thus authorises a certain flexibility in the choice of procedures for determining conditions of employment with the participation of civil servants (see also J. Llobera, “La F onction P ublique et la L iberté S yndicale dans les N ormes I nternationales du T ravail”, Revue T rimestrielle des D roits de l ’ H omme , 1992, p. 336, for whom such flexibility would not even entail recourse to collective bargaining).

9. In short, the basic issue is to ascertain what is meant by “ collective bargaining ” . The authorising of public officials to make their voices heard certainly implies that they have a right to engage in social dialogue with their employer, but not necessarily the right to enter into collective agreements or that States have a corresponding obligation to enable the existence of such agreements. States must therefore be able to retain a certain freedom of choice in such matters.

10. In the present case, however, the right to bargain collectively at issue had been rendered totally meaningless by the obstacles placed in the way of the social dialogue. The annulment ex tunc of the collective agreement entered into following collective bargaining with the authority had therefore entailed a violation of Article 11 of the Convention .

[1] . http://www.ilo.org/ilolex/cgi-lex/[email protected]&chspec=06

[2] . http://training.itcilo.it/ils/foa/library/digestdecisions_fr/23076.htm