GRAND CHAMBER
CASE OF HUMPERT AND OTHERS v. GERMANY
(Applications nos. 59433/18, 59477/18, 59481/18 and 59494/18)
 
JUDGMENT
 
Art 11 • Freedom of association • Proportionate disciplinary sanctions on teachers with civil-servant status for participating during their working hours in strikes organised by their trade union, in breach of the constitutional ban on civil servants striking • Non-exhaustive list of essential elements of trade-union freedom built up through Court’s case-law • Question of whether strike prohibition affected an essential element of trade-union freedom being context-specific and requiring an assessment of all case circumstances • Legitimate aims of ensuring the maintenance of a stable administration, the fulfilment of State functions and the proper functioning of the State and its institutions • Impugned disciplinary measures also served to ensure a functioning school system and thus safeguard the right of others to education protected by Art 2 P1 • General ban on strikes for all civil servants raised specific issues under the Convention • Negative assessments by monitoring bodies set up under the specialised international instruments and trend emerging from the practice of the Contracting States are relevant elements, but not decisive for Court’s assessment • Strike action, albeit important part of trade-union activity, not the only means for trade unions and their members to protect relevant occupational interests • Variety of different domestic institutional safeguards, in their totality, enabled civil servants’ trade unions and civil servants to effectively defend the relevant occupational interests • Prohibition on strikes a general measure reflecting the balancing and weighing-up of different, potentially competing, constitutional interests
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
14 December 2023
 
This judgment is final but it may be subject to editorial revision. Table of Contents
PROCEDURE
THE FACTS
I. THE DISCIPLINARY MEASURES AGAINST THE APPLICANTS
II. PROCEEDINGS IN THE ADMINISTRATIVE COURTS
III. PROCEEDINGS IN THE FEDERAL CONSTITUTIONAL COURT
A. The applicants’ constitutional complaints
B. The Federal Constitutional Court’s judgment
1. Compliance with Article 9 § 3 of the Basic Law
2. Compliance with Article 11 of the Convention
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. THE DOMESTIC LEGAL FRAMEWORK
A. Provisions of the Basic Law
B. The case-law of the domestic courts
1. Case-law on the prohibition to strike
2. Case-law on the relevant principles of the career civil service
3. Case-law on the duty of care
C. Statutory provisions relating to civil servants
1. Provisions relating to the prohibition on strikes
2. Provisions relating to the participation in the legislative procedure
3. Rights of representation of civil servants
II. INTERNATIONAL LAW AND PRACTICE
A. Vienna Convention on the Law of Treaties
B. The Permanent Court of International Justice
C. The right to strike and possible bans and restrictions
1. Universal instruments and practice
2. Council of Europe
3. European Union
4. Inter-American system
D. The right to education
III. COMPARATIVE LAW MATERIAL
THE LAW
I. THE ROLE OF THE COURT
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
A. Admissibility
B. Merits
1. The parties’ submissions
(a) The applicants
(b) The Government
2. Submissions of the third-party interveners
(a) The Danish Government
(b) European Trade Union Confederation, German Trade Union Confederation, Trade Union for Education and Science
(c) Association of Civil Servants and Union for Collective Bargaining
3. The Court’s assessment
(a) General principles
(i) The Court’s approach to trade-union freedom
(ii) The right to strike
(b) Application of those principles to the present case
(i) Whether there has been an interference
(ii) Whether the interference was justified
(α) “Prescribed by law”
(β) Legitimate aim
(γ) “Necessary in a democratic society”
i. The nature and extent of the restriction on the right to strike
ii. The measures taken to enable civil servants’ trade unions and civil servants themselves to defend occupational interests
(α)  The right of civil servants to form and join trade unions
(β)  Participatory rights granted to trade unions to protect the occupational interests of civil servants
(γ)  Individual right of each civil servant to be provided with “adequate maintenance”
(δ)  Rights of representation and of co-determination
iii. The objectives pursued by the prohibition on strikes
iv. Further rights encompassed by civil servant status
v. The possibility of working as a State school teacher under contractual State employee status with a right to strike
vi. The severity of the impugned disciplinary measures
(iii) Overall assessment
III. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 11 OF THE CONVENTION
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

Article of the Convention at issue: Article 11
Outcome: no_violation