JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND ZÃœND

1. We respectfully disagree with point 3 of the operative part of the judgment, which states that there has been no violation of Article 11 of the Convention. In particular, we disagree that the impugned interferences based on section 4a, especially paragraph 2, of the Collective Agreements Act, as amended by the Uniformity of Collective Agreements Act, did not violate the applicants’ right to form and to join a trade union for the protection of their interests under Article 11 § 1 of the Convention.

2. In our humble view, the means employed by the impugned interferences were entirely disproportionate to their legitimate aim, namely, the prevention of conflicting collective agreements: (a) as they impaired the core or very essence of the applicants’ right under Article 11 § 1 of the Convention, rendering it ineffective, and (b) despite the fact that less intrusive means could have been employed in order to achieve the same legitimate aim, including negotiation and arbitration (but it is not our task to further expand on such other less intrusive means).

3. Pursuant to Article 11 § 1 of the Convention, everyone has the right to form and to join trade unions for the protection of their interests. This includes the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members and the right to bargain collectively with the employer (see Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 145, 153 and 154, ECHR 2008).

4. If it is evident from the outset that a collective agreement will become inapplicable because it has been concluded by a minority union, the right of this union to represent its members in order to protect their interests, to be heard by the employer and to bargain collectively, becomes devoid of substance. Seeking to protect interests without at least the possibility that these interests may potentially be heard and respected by the employer amounts to a farce, rendering the right to make representations an empty shell. Even the taking of industrial action, one of the most powerful tools at the union’s disposal, is usually aimed at persuading the employer to enter into collective bargaining with the union(s) and employees in question. If a potential collective agreement would be inapplicable anyway, such union measures are stripped of their efficacy. As the Federal Constitutional Court observed (see paragraph 17 of the present judgment):

“the provision [section 4a § 2 second sentence] led to trade unions which were in a minority provision in a company no longer being considered as a serious collective bargaining partner by the employer. This weakened those trade unions’ ability to attract new members and to mobilise their members to strike. Furthermore, the trade unions’ freedom of association was impaired in that they might be obliged to disclose the number of their members in a business unit in labour proceedings to determine the majority union ... and thus their strength in the event of industrial action. Moreover, the provision affected their decision on their negotiation policy and profile, and particularly on the professional groups they wished to represent.”

We appreciate that the majority agree (see paragraph 67 of the judgment) that the right to join trade unions includes the right to strike, but the majority fail to see that striking is aimed at negotiations and collective bargaining and that it is the right of collective bargaining which is curtailed by the impugned provisions, and that being so, the right to strike is also rendered ineffective, illusory and without real object.

5. In addition to the principles of proportionality and effectiveness, the principle of prohibition of discrimination guaranteed by Article 14 of the Convention has also been disregarded by the impugned interferences. Article 14 prohibits any discrimination and the impugned legislation discriminates between unions according to the numerical size of their membership. This discrimination has the effect that the legal provisions of collective agreements made by a union which has more members/employees, even by one, than any other union, will render inapplicable the legal provisions of the collective agreements made by minority unions. These are not objective and reasonable differentiations in order to allow discrimination under the Court’s case-law. What is more, such differentiations are in our view not consonant with the right in question under Article 11 § 1. Having said the above, we cannot proceed to find a violation of Article 14 in conjunction with Article 11, since this issue was not raised by the applicants.

6. Plurality of voices, including plurality of unions, is an essential element of any democratic society and the principle of democracy upon which the Convention is founded. If one trade union, on a numerical criterion were to set aside other minority trade unions or make them in effect voiceless or “prevent them from functioning” (see § 1387 of International Labour Organisation, CFA, Compilation of decisions (2018) – referred to in paragraph 32 of the judgment) with respect to certain collective agreements, as in the present case, the principle of democracy would also be violated. Such interference could not be justified as “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.

7. What has been said above should apply, in our view, irrespective of whether the right under Article 11 § 1, apart from the right to collective bargaining, also includes a right to a collective agreement. We submit that Article 11 § 1 does also include a right to form a collective agreement if a consensus is ultimately reached between a trade union and the organisation of employers. Thus the Court’s case-law must evolve in that direction, based on the doctrine that the Convention is a living instrument which must always be adapted to present-day conditions (see on this doctrine, regarding the Article 11 right, Demir and Baykara , cited above, § 146). According to the principle of effectiveness, a broad interpretation should be given to such right under Article 11 § 1; in any event, the word “including” is used in that provision, thus expressly allowing for a broad interpretation. It would be meaningless for Article 11 § 1 to cover collective bargaining but not to cover the actual collective agreement which would be the result of the former. It is not logical to argue that one has a right to try to do something but not to have the right ultimately to achieve it. It cannot be the aim of the Convention to protect something which is not useful, without any effet utile . That would be contrary to the principle of effectiveness, an aspect of which is to guarantee that all Convention provisions are useful and necessary in order to convey their intended meaning (see on this aspect of the principle of effectiveness, Daniel Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis ”, Nordic Journal of International Law 79 (2010), p. 256; and Georgios A. Serghides, The Principle of Effectiveness and its Overarching Role in the Interpretation and Application of the ECHR: The Norm of All Norms and the Method of All Methods, Strasbourg, 2022, pp. 84-85).

8. Moreover, what has been said above should apply irrespective of the effort of the Federal Constitutional Court to insert an interpretative caveat in the legislation (see paragraph 65 of the judgment) which the legislation did not include at the material time, although it was incorporated into the legislation on 1 January 2019 (see paragraph 29 of the judgment), thus, even after the filing of the present applications. The caveat, whether judicial or legislative, namely, that the trade union with the bigger numerical size must seriously and effectively take into account the interests of the employees of other smaller trade unions, still does not make the impugned interferences compatible with Article 11 § 1 . This is so, inter alia , because Article 11 § 1 expressly relates “the protection of [one’s] interests” to the exercise of one’s right “to form and to join trade unions”. Of particular relevance, in this connection, is the use of the link word “for”, associating the right of membership within a union with the pursuit of the protection of one’s interests through that same union. Consequently, Article 11 § 1 does not relate the protection of interests of an employee who has joined a particular union to the protection of those interests by a different union, of which he or she is not a member. In any event, it may happen that a trade union with the highest number of employees has a smaller majority regarding a specific labour issue than the majority on the same issue in another trade union with a smaller number of employees.

9. In addition to finding a violation of Article 11 § 1, we would award legal costs, with pecuniary and non-pecuniary damage, only to those applicants who made such claims (different claims were made). However, being in the minority, we do not see any need to specify the amounts that we would award under those heads.

APPENDIX

List of applications

No.

Application no.

Case name

Lodged on

Applicant Year of birth / registration / establishment Place of residence / seat

1.

815/18

Association of Civil Servants and Union for Collective Bargaining v. Germany

21/12/2017

Association of Civil Servants and Union for Collective Bargaining ( Beamtenbund und Tarifunion (dbb));1918; Berlin

2.

3278/18

Marburger Bund – Association of Employed and State-employed Physicians in Germany v. Germany

10/01/2018

Marburger Bund , Association of Employed and State-employed Physicians in Germany ( Verband der angestellten und beamteten Ärztinnen und Ärzte Deutschlands e.V. ); 2006; Berlin

3.

12380/18

Trade Union of German Train Drivers v. Germany

08/03/2018

Trade Union of German Train Drivers ( Gewerkschaft Deutscher Lokomotivführer (GDL)); 1867; Frankfurt a.M.

4.

12693/18

Angert and Others v. Germany

08/03/2018

Melanie ANGERT 1978; Leimen;

Guido BEHRINGER 1967; Berlin;

Florian HOFMEIER 1983; Guderhandviertel;

Jens-Peter LÜCK 1968; Bad Schönborn;

Lars WACHSMUTH 1989; Frankfurt a.M.

5.

14883/18

Ratih v. Germany

21/03/2018

Sven RATIH 1987; Moers