Published on 16 October 2023

FOURTH SECTION

Application no. 20109/20 NEUE ASSEKURANZ GEWERKSCHAFT E.v. against Germany lodged on 30 April 2020 communicated on 25 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the decision of the Labour Court of Appeal, following proceedings initiated by a large, competing trade union, deciding that the applicant union was not considered, under national law, to have the status of a “trade union” with the capacity to conclude collective agreements in the interest of its members.

The applicant union, the New Insurance Trade Union Association ( Neue Assekuranz Gewerkschaft e.V. ), is an association of employees in the field of private insurance aiming to serve as a trade union in this sector.

Following proceedings initiated by a large, competing trade union, on 9 April 2015 the Labour Court of Appeal ( Landesarbeitsgericht ) decided that the applicant union was not considered to have the status of a “trade union” with the capacity to conclude collective agreements in the interest of its members ( Tariffähigkeit ) for which an association needed to fulfil, in particular, the requirements of assertiveness vis-à-vis the social opponent ( Durchsetzungskraft ) and the so-called “trade union density” (trade union membership rate) with a certain level of organisation within its self-defined occupational sector ( Organisationsgrad ). The Labour Court of Appeal considered those requirements to be in accordance with Article 11 of the Convention, taking into account that the Convention did not give a definition of the circumstances under which an association could be defined as a “trade union”. Based on the decisive element of the overall number of its members, it found that a forecast of the applicant union’s assertiveness vis-à-vis the social opponent was not conclusive. The applicant union had not yet concluded any collective agreement, and even when so requested had not submitted any information on the number of its members. The Labour Court of Appeal noted that even if the applicant union had 2,000 members, the level of organisation – in the insurance sector which had overall about 200,000 employees – would only be 1%; nor was the applicant union represented in key positions in such a way as to be able to put employers under pressure.

On 17 November 2015 the Federal Labour Court dismissed the applicant union’s appeal against the decision refusing leave to appeal on points of law.

On 13 December 2018 the Labour Court of Appeal dismissed as inadmissible the applicant union’s new application to be granted the capacity to conclude collective agreements, referring to the legal authority of the former decisions ( entgegenstehende Rechtskraft ).

On 13 September 2019 the Federal Constitutional Court decided not to accept the applicant union’s constitutional complaint against the Labour Court of Appeal’s decision of 9 April 2015 for adjudication (1 BvR 1/16), finding no violation of the applicant union’s right to form associations in order to safeguard and improve working and economic conditions (Article 9 § 3 of the Basic Law). This provision did not prohibit granting the power of autonomous collective bargaining ( Tarifautonomie ) only to associations with a capacity of making use, in practice, of the freedom to shape working life through collective agreements. The requirement of capacity to conclude collective agreements aimed at ensuring that no splinter associations but only associations with a minimum of bargaining power and a certain assertiveness vis-à-vis their social opponent had the possibility of negotiating and concluding collective agreements. The Labour Court of Appeal, in order to determine the applicant union’s bargaining power, had been authorised to take into account, and ask the applicant union to disclose, the number and structure of its membership. Its conclusion that it was impossible to establish that the applicant union had sufficient bargaining power from the facts at hand, even when taking into account the association’s structure, was convincing.

The applicant union complained under Article 11 of the Convention that the requirement of the capacity to conclude collective agreements, and the national courts’ refusal to grant it this capacity, violated its right to form trade unions. It alleged that the refusal of that capacity amounted to a de facto restriction on the foundation of a trade union, rendering it impossible for a “new” association to reach the high threshold of negotiating power. Relying upon Article 14 read in conjunction with Article 11, the applicant union complained also of structural discrimination with regard to larger and already well-established trade unions.

QUESTIONS TO THE PARTIES

1. Has the applicant union exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, with regard to the second set of proceedings before the Labour Court of Appeal?

2. Has there been an interference with the applicant union’s freedom of association, in particular its right to form a trade union, within the meaning of Article 11 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?

In particular, was the alleged interference in the present case necessary in a democratic society, bearing in mind that the applicant union was denied the status of “trade union” with the consequence of excluding collective bargaining with regard to all fields of the applicant’s activities within the insurance sector ?

In particular, what consequences are to be drawn from the fact that the applicant had refused to indicate the number and structure of its membership?

3. Has the applicant union suffered discrimination in the enjoyment of its Convention rights, contrary to Article 14 read in conjunction with Article 11 of the Convention?