Published on 16 October 2023

FOURTH SECTION

Application no. 50974/22 DHV DIE BERUFSGEWERKSCHAFT E.v. against Germany lodged on 1 November 2022 communicated on 25 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the decision of the Federal Labour Court, following proceedings initiated by large, competing trade unions, deciding that after some decades the applicant union had, under national law, ceased to have the status of “trade union” with the capacity to conclude collective agreements in the interest of its members.

The applicant union ( DHV – Die Berufsgewerkschaft e.V. ) is an association of employees originally in the fields of commerce, banking, insurance and statutory social insurance, aiming to serve as a “trade union” ( Gewerkschaft ) in this occupational sector. In 1956 the Labour Court had confirmed the applicant union’s capacity to conclude collective agreements in the interest of its members ( Tariffähigkeit ). Subsequently, the applicant union modified its occupational sector as laid down in its statutes.

Following proceedings initiated by, amongst others, large, competing trade unions, on 22 June 2021 the Federal Labour Court confirmed that the applicant union had ceased to have the status of “trade union” with the capacity to conclude collective agreements as of 21 April 2015. The Federal Labour Court found, based on the decisive element of the overall number of its members, that the applicant union, after broadening its occupational sector, had ceased to fulfil the minimum requirements under national law, which require the association’s assertiveness vis-à-vis the social opponent ( Durchsetzungskraft ) and the so-called “trade union density” (trade union membership rate) consisting in a certain level of organisation within its self ‑ defined occupational sector ( Organisationsgrad ).

On 31 May 2022 the Federal Constitutional Court decided not to accept the applicant union’s constitutional complaint for adjudication (1 BvR 2387/21), 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 to make use, in practice, of the freedom to shape working life through collective agreements. While the conclusion of collective agreements in the past could serve as an indicator of assertiveness vis-à-vis the social opponent, the indicative effect decreased with the level of organisation and lost its relevance where the union comprehensively changed its occupational sector.

The applicant union complained under Article 11 of the Convention that the labour courts’ decision that it had ceased to be a “trade union” with capacity to conclude collective agreements, therefore preventing it from negotiating and concluding collective agreements, disproportionally deprived it of that core element of the right to form a trade union. Relying upon Article 14 read in conjunction with Article 11, the applicant union complains also of structural discrimination with regard to larger and less diverse trade unions.

QUESTIONS TO THE PARTIES

1. 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 found to have ceased to have the status of “trade union” and excluded from collective bargaining with regard to all fields of the applicant union’s statutory occupational sector?

2. 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?