THIRD SECTION
CASE OF ASSOCIATION OF CIVIL SERVANTS AND UNION FOR COLLECTIVE BARGAINING AND OTHERS v. GERMANY
(Applications nos. 815/18 and 4 others – see appended list)
 
 
JUDGMENT
Art 11 • Form and join trade unions • Legislation, rendering conflicting collective agreements concluded by minority trade unions inapplicable, within the respondent State’s margin of appreciation • Limited extent of restriction, not affecting an essential element of trade-union freedom • Interference pursuing weighty aim of securing proper functioning of system of collective bargaining in interests of employees and employers
 
STRASBOURG
5 July 2022
 
FINAL
 
05/10/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Association of Civil Servants and Union for Collective Bargaining and Others v. Germany,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Andreas Zünd,
 Frédéric Krenc, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the applications (nos. 815/18, 3278/18, 12380/18, 12693/18 and 14883/18) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three German trade unions, the Association of Civil Servants and Union for Collective Bargaining, Marburger Bund – Association of Employed and State-employed Physicians in Germany and the Trade Union of German Train Drivers, and also by several German nationals, Ms Melanie Angert and others (see appended table) and Mr Sven Ratih (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the German Government (“the Government”) of the complaint concerning the compatibility of the provisions of the Uniformity of Collective Agreements Act with the applicants’ freedom of association under Article 11 of the Convention and to declare inadmissible the remainder of the applications;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the third-party comments submitted by the German Trade Union Confederation, the Confederation of German Employers’ Associations, the German Railway stock corporation together with the Employers’ and Trade Association of Mobility and Transport Providers and the Aviation Employers’ Association, all of whom had been granted leave to intervene by the Vice-President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court);
Having deliberated in private on 10 May 2022 and 31 May 2022,
Delivers the following judgment, which was adopted on the last-mentioned date:
INTRODUCTION
1. The applications concern the compatibility with Article 11 of the Convention of the Uniformity of Collective Agreements Act (Tarifeinheitsgesetz), which regulates conflicts that arise if several collective agreements are applicable in one business unit of a company. The Act prescribes that, in the event of such a conflict, the collective agreement of the trade union which has fewer members in the business unit becomes inapplicable. THE FACTS
2. The years of the applicants’ birth, registration or establishment and their places of residence or seat are indicated in the appended table. They were represented by Mr W. Däubler, Dußlingen (first applicant), Mr F. Schorkopf, Göttingen (second applicant) and Mr U. Fischer, Frankfurt a.M. (applicants in the third to fifth applications). 3. The Government were represented by one of their Agents, Mr H.‑J. Behrens, of the Federal Ministry of Justice and Consumer Protection, and by Mr T. Giegerich, Professor at Saarland University. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The first applicant, Association of Civil Servants and Union for Collective Bargaining (Beamtenbund und Tarifunion (dbb)), is a confederation of trade unions and associations of the public service and the private service sector. One of its missions is to negotiate collective agreements for the members of its member unions. 6. The second applicant, Marburger Bund – Association of Employed and State-employed Physicians in Germany, concludes collective agreements for its members, employed physicians, since 2006. 7. The third applicant, the Trade Union of German Train Drivers (GDL) is the oldest trade union in Germany, whose mission it is to conclude collective agreements for its members, railway traffic employees. 8. The applicants in the fourth case (Ms Melanie Angert and others) and in the fifth application (Mr Sven Ratih) are members of the third applicant trade union. BACKGROUND TO THE ADOPTION OF THE UNIFORMITY OF COLLECTIVE AGREEMENTS ACT
9. A company may negotiate with different trade unions representing employees of that company and may conclude several collective agreements covering employees working in the same business unit of the company (Betrieb) with these trade unions. This may lead to conflicts where several collective agreements with diverging provisions cover employees in similar positions in that business unit (these are known as “conflicting collective agreements”). In that event, the Federal Labour Court had initially considered in its case-law, from 1957 onwards, that only the collective agreement which was most specifically tailored to the business unit in question remained applicable. In 2010 that court reversed its case-law (to which there had previously been some exceptions), which it then considered to lack a sufficient legal basis, and permitted different collective agreements to apply to employees in similar positions in one business unit of a company, depending on the relevant employee’s trade union membership. 10. On 3 July 2015, consequently, the legislature adopted the Uniformity of Collective Agreements Act, which entered into force on 10 July 2015, to provide for a new solution in case of conflicting collective agreements. Under this Act, which, in particular, inserted a new section 4a into the Collective Agreements Act (Tarifvertragsgesetz, see paragraph 27 below), only the collective agreement concluded by the trade union which has the highest number of members employed within the business unit of the company concerned remains applicable; other collective agreements become inapplicable (section 4a § 2, second sentence). 11. The union whose collective agreement became inapplicable has the right to adopt the legal provisions of the majority union’s collective agreement (Nachzeichnung). Moreover, if the employing company engages in collective bargaining, it has to inform the other trade unions in that company, and all unions have the right to present their demands to the employer (section 4a §§ 4 and 5 of the Collective Agreements Act; see details in paragraph 27 below). 12. Furthermore, the Uniformity of Collective Agreements Act inserted sections 2a § 1 no. 6 and 99 into the Labour Courts Act (see in detail paragraph 30 below). They establish the procedure for determining which of the conflicting collective agreements is applicable in a given business unit. THE PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT
13. The applicants lodged a constitutional complaint with the Federal Constitutional Court directly targeting the Uniformity of Collective Agreements Act, arguing that the legal provisions as amended by this Act breached, in particular, their right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. 14. In a leading judgment of 11 July 2017 on the first and second applicants’ constitutional complaints, inter alia, the Federal Constitutional Court found, by six votes to two, that section 4a of the Collective Agreements Act as amended by the Uniformity of Collective Agreements Act was incompatible with Article 9 § 3 of the Basic Law in one respect only. The provision did not contain sufficient safeguards to ensure that the interests of those professional groups whose collective agreement became inapplicable under section 4a § 2, second sentence, were sufficiently taken into account in the applicable collective agreement. Apart from this, the Uniformity of Collective Agreements Act, interpreted in line with the reasons given in the Constitutional Court’s judgment, was compatible with the Basic Law, and the applicants’ constitutional complaints were thus essentially dismissed (file no. 1 BvR 1571/15 and others). 15. The Federal Constitutional Court found that the first and second applicants had themselves been directly affected, already at that stage, by the impugned provisions, as the latter had required them to take into account, in their current collective bargaining policy and organisational structure, the potential inapplicability of any future collective agreements negotiated by them. They therefore had standing to lodge a constitutional complaint. 16. The court further found that section 4a § 2, second sentence, of the Collective Agreements Act considerably impaired the right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. The provision led to the inapplicability of the provisions of a collective agreement resulting from a trade union’s collective bargaining. The members of the trade union in question were accordingly left without a collective agreement. 17. Moreover, the provision led to trade unions which were in a minority position 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 court proceedings to determine the majority union (see section 2a § 1 no. 6 and 99 of the Labour Courts Act, at paragraph 30 below), and thus their strength in the event of industrial action. Moreover, the provision affected their decisions on their negotiation policy and profile, and particularly on the professional groups they wished to represent. However, the provision did not curtail a trade union’s right to strike even where it was known in advance that the trade union taking industrial action had a smaller number of members than another trade union in the company concerned. 18. The interferences with the right to freedom of association by the impugned provisions, interpreted in the light of the Basic Law, fell, for the most part, within the State’s margin of appreciation and were thus justified. 19. Freedom of association could be restricted by legal provisions regulating the relationship between competing trade unions. The impugned provisions pursued the important legitimate aim of ensuring that a fair balance was struck in collective agreements on working and economic conditions and thus safeguarding the operation of the system of autonomous collective bargaining (Tarifautonomie). They aimed at influencing trade unions’ activities by encouraging them to cooperate and avoid negotiating different collective agreements for employees in similar positions. Fair collective bargaining would be jeopardised if employees with key positions in a business unit negotiated their working and economic conditions separately and thereby impaired the other employees’ ability to negotiate on an equal footing with the employer. 20. The court stated that, in order to be proportionate, the impugned provisions had to be interpreted restrictively. Firstly, all parties to collective agreements in a business unit could agree on the agreement of a minority trade union not becoming inapplicable under section 4a § 2, second sentence, of the Collective Agreements Act where several conflicting collective agreements had been concluded. Furthermore, a collective agreement only became inapplicable in certain circumstances, that is to say if, and for as long as, there was an overlap with the majority union’s agreement as regards the place, time, business unit and employees’ position covered and if at least part of the provisions on working conditions differed in the agreements (conflicting collective agreements). Even where such a conflict occurred, long-term benefits or guarantees concerning the personal life planning agreed upon in a minority’s collective agreement, such as longer-term contributions to a pension, job guarantees or provisions on the duration of working life, could not be rendered inapplicable unless there was a comparable benefit or guarantee in the majority’s agreement. 21. Moreover, the right to adopt the majority union’s collective agreement under section 4a § 4 of the Collective Agreements Act was to be interpreted broadly and applied to the majority’s agreement in its entirety and not only to the issues in respect of which the agreements overlapped. Furthermore, a collective agreement did not become inapplicable where the rules on notification of collective bargaining and on hearing other competing trade unions (section 4a § 5 of the Collective Agreements Act), which served to safeguard the minority unions’ rights under Article 9 § 3 of the Basic Law, had not been respected. Finally, the proceedings under section 99 of the Labour Courts Act had to be led in such a way as to avoid, as far as possible, disclosing the number of members in a given trade union. This could be achieved by a notary certifying only the fact which union organises the majority of employees in a business unit, without disclosing the names and number of members of the trade unions concerned. 22. Section 4a § 2, second sentence, of the Collective Agreements Act was, however, disproportionate in so far as it did not provide for safeguards against neglecting the interests of employees in particular professions or sectors by the majority trade union (in which these employees may be un- or under-represented) in the collective agreement negotiated by that union. That provision remained applicable until it was amended by the legislature (until 31 December 2018 at the latest), with the proviso that a collective agreement could only become inapplicable if it had been substantiated that the majority trade union had seriously and effectively taken into account the interests of the professional groups whose collective agreement became inapplicable. 23. Rules of public international law, including, inter alia, Article 11 of the Convention and the European Social Charter, contained no guarantees going beyond the protection provided by Article 9 § 3 of the Basic Law. 24. By decision of 10 August 2017, served on counsel for the applicants on 28 September 2017, the Federal Constitutional Court, referring to its leading judgment of 11 July 2017, declined to consider the constitutional complaints by the applicants in the third to fifth applications (file no. 1 BvR 1803/15). RELEVANT LEGAL FRAMEWORK
THE DOMESTIC LEGAL FRAMEWORKProvision of the Basic Law

25. Article 9 of the Basic Law, on freedom of association, in so far as relevant, provides:
“(3)  The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every profession. Agreements which restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. ...”
Provisions of the Collective Agreements Act and the Uniformity of Collective Agreements Act
26. Under section 3 § 1 of the Collective Agreements Act collective agreements bind the employer and the members of the trade union having concluded the agreement. 27. Section 4a of the Collective Agreements Act, on conflicting collective agreements (Tarifkollision), as amended by the Uniformity of Collective Agreements Act and in force at the relevant time, provides:
“(1)  In order to maintain the protection function, the distribution function, the pacification function and the ordering function of legal provisions of a collective agreement, conflicting collective agreements shall be prevented in a business unit. (2)  In accordance with section 3, an employer may be bound by several collective agreements with different trade unions. To the extent that the scopes of application of collective agreements of different trade unions which are not identical in content overlap in one business unit (conflicting collective agreements), only the legal provisions of the collective agreement shall apply which was concluded by the trade union that organised the majority of employees in that business unit at the time when the last conflicting collective agreement was concluded. ... (4)  A trade union may request the employer or confederation of employers that it may subsequently adopt the legal provisions of the collective agreement which is conflicting with the agreement it had concluded (Nachzeichnung). ... (5)  If an employer or confederation of employers starts negotiations with a trade union on the conclusion of a collective agreement, the employer or confederation of employers is obliged to give notice thereof in due time and in an adequate manner. A different trade union, whose tasks under their statute comprises the conclusion of collective agreements ..., is entitled to present its expectations and demands to the employer or confederation of employers orally.”
28. According to the Explanatory Memorandum to the draft Uniformity of Collective Agreements Act submitted by the Government to the Federal Parliament, the objective of the Act was to ensure the proper functioning of the system of collective bargaining by preventing conflicting collective agreements. The Act is aimed at safeguarding the ordering, distribution, protection and pacification functions of collective agreements. Those functions would be endangered if conflicting collective agreements applied which did not reflect the value of the work performed by different employees, but the key or other position of the respective employees in the business unit. The Act should notably prevent trade unions representing employees in key positions from negotiating collective agreements to the detriment of other employees, thus preserving solidarity between employees. It should further facilitate the conclusion of an overall compromise within a business unit, which was important, in particular, in times of economic crisis for saving jobs. The provisions of the Act are supposed to encourage trade unions to avoid concluding conflicting collective agreements for employees in similar positions. Different ways of avoiding conflicting collective agreements proposed by several experts were not considered equally suitable to achieve this aim (see German Federal Parliament, Parliamentary publication no. 18/4062 of 20 February 2015, pp. 8 et seq.). 29. By an Act which entered into force on 1 January 2019 (Federal Law Gazette [Bundesgesetzblatt] I, p. 2651), the legislator amended section 4a § 2 of the Collective Agreements Act in order to comply with the Federal Constitutional Court’s judgment. Section 4a § 2, as amended, provides, in addition, that the legal provisions of a collective agreement concluded by a minority union remain applicable if, when concluding the collective agreement of the majority union, the interests of groups of employees also covered by the agreement of the minority union were not seriously and effectively considered. Provisions of the Labour Courts Act
30. Section 2a § 1 no. 6 of the Labour Courts Act, as inserted by the Uniformity of Collective Agreements Act, provides that the labour courts have sole jurisdiction to determine which of several conflicting collective agreements was applicable in a business unit under section 4a § 2, second sentence, of the Collective Agreements Act. The newly inserted section 99 of the Labour Courts Act lays down the procedure in that regard. It provides, in particular, that proceedings may be instituted at the request of one of the parties to a conflicting collective agreement. The final decision as to which collective agreement is applicable in a business unit concerned has erga omnes effect. INTERNATIONAL LAW AND PRACTICE
31. International bodies made, inter alia, the following findings in respect of national legal systems requiring trade unions to meet certain representativeness criteria for collective bargaining and concluding collective agreements. 32. The International Labour Organization (ILO) Committee on Freedom of Association (CFA), having regard, inter alia, to the Right to Organise and Collective Bargaining Convention (No. 98), 1949, ratified by Germany, summarised its practice in this regard as follows:
“1350. The Collective Bargaining Recommendation, 1981 (No. 163), enumerates various means of promoting collective bargaining, including the recognition of representative employers’ and workers’ organizations (Paragraph 3(a)). ...
1351. Systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. ...
1360. Systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98. ...
1387. The Committee has recalled the position of the Committee of Experts on the Application of Conventions and Recommendations that, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances” (see ILO CFA, Compilation of decisions (2018), with further references)
33. The European Committee of Social Rights (ECSR) found in respect of the right to bargain collectively under Article 6 of the European Social Charter (ratified by Germany at the relevant time in its original 1961 version):
“It is open to States Parties to require trade unions to meet an obligation of representativeness subject to certain conditions. With respect to Article 6 § 2 such a requirement must not excessively limit the possibility of trade unions to participate effectively in collective bargaining. In order to be in conformity with Article 6 § 2, the criteria of representativeness should be prescribed by law, should be objective and reasonable and subject to judicial review which offers appropriate protection against arbitrary refusals. ...” (see Digest of the Case Law of the ECSR of December 2018, p. 100, with further references)
THE LAW
JOINDER OF THE APPLICATIONS
34. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
35. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act violated their right to form and join trade unions, including a right to collective bargaining, as provided in Article 11 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Admissibility
36. The parties agreed, in particular, that the applicants could all claim to be victims, for the purposes of Article 34 of the Convention, of a breach of Article 11 directly by the impugned provisions of the Uniformity of Collective Agreements Act. 37. The Court notes that in order to be able to claim to be a victim of a Convention violation, for the purposes of Article 34, a person or group of individuals must be directly affected by the impugned measure (see for a comprehensive recapitulation of the relevant case-law in this regard Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.), no. 37857/14, §§ 37-39, 7 December 2021). It is, however, open to a person to contend that a law violates his or her rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34, if he or she is required to either modify his or her conduct or risk being prosecuted, or if he or she is a member of a class of people who risk being directly affected by the legislation (see, inter alia, Burden v. the United Kingdom [GC], no. 13378/05, §§ 33-34, ECHR 2008, and Michaud v. France, no. 12323/11, § 51, ECHR 2012). 38. The Court observes that with the entry into force of the impugned legislation and the judgment of the Federal Constitutional Court of 11 July 2017, the applicant trade unions, in accordance with the aim of that legislation, needed to adapt their collective bargaining policy and possibly their organisational structure to avoid the inapplicability of future collective agreements negotiated by them (see also the Federal Constitutional Court’s findings at paragraphs 15 and 17 above, and paragraphs 46-47 and 46 below). The applicant unions, like the applicant trade union members in whose interest the unions pursued and adapted their collective bargaining strategies, are accordingly members of a group who risk being directly affected by the impugned legislation. All applicants can thus claim to be victims of the alleged Convention violation. 39. The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicants
40. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act had severely interfered with their right under Article 11 of the Convention to freedom of association. As a consequence of the Act, the applicant trade unions had no longer been able to conclude applicable collective agreements in companies in which a different trade union had more members and employers no longer wished to negotiate with them. 41. The interference was not prescribed by law for the purposes of Article 11 § 2. The impugned provisions of the Uniformity of Collective Agreements Act were not sufficiently precise and foreseeable in their application. It was very difficult in practice to know which part of a company was the relevant “business unit”, which staff members were to be counted as “employees” and thus which of the trade unions in a business unit had the majority of members. The first applicant further argued that the impugned provisions did not pursue a legitimate aim as they were aimed at encouraging trade unions to cooperate, whereas it was for the latter to decide how to negotiate collective agreements. 42. Finally, the interference with an essential element of the applicants’ freedom of association, namely the right to bargain collectively, by the impugned provisions was not proportionate to the aim of an egalitarian collective bargaining policy. The interference was not adequately compensated for by the minority union’s right to be heard and to adopt the collective agreement of the majority union as it deprived trade unions of their independence and attractivity for members. It would also be difficult to mobilise members to strike if it was certain from the outset that what was obtained as a result and reflected in a collective agreement would not ultimately be applicable. The applicants stressed, in particular, that the impugned Act, while also affecting trade unions such as the first applicant which did not represent employees in key positions, thus disadvantaged and threatened the existence of smaller trade unions of professional groups. 43. The applicants further submitted that prior to the entry into force of the Uniformity of Collective Agreements Act, it had sometimes happened in practice that different collective agreements for the same group of employees had been applicable in one business unit; it had not been shown that this had caused any particular difficulties. The true reason for the adoption of the impugned Act was to create a monopoly structure on the part of the employees. While it was true that section 4a § 2, second sentence, of the Collective Agreements Act never had to be applied in practice, this was also due to the fact that the collective bargaining parties had agreed to exclude the applicability of the provision in some sectors for specific collective agreements of minority trade unions, which therefore remained applicable (regarding this possibility, cf. paragraph 20 above). (b)   The Government
44. The Government submitted that the interference by the impugned legislation with the applicants’ right to freedom of association, which included a right to bargain collectively with an employer, had been justified for the purposes of Article 11 § 2. It had been prescribed by law, namely the Uniformity of Collective Agreements Act as interpreted restrictively by the Federal Constitutional Court. In particular, the term “business unit” in the new section 4a § 2 of the Collective Agreements Act had long been used in labour law and been interpreted in a foreseeable manner by the labour courts. 45. The interference pursued the legitimate aim of protecting the rights and freedoms of other trade unions and their members. It served to protect the German system of collective bargaining as such by preventing minority trade unions representing employees with key positions from securing a disproportionate share of a company’s profits. They submitted that since the year 2000, several such unions, representing inter alia pilots, flight attendants, salaried physicians and train drivers, had engaged in separate collective bargaining and intensive industrial action aimed at obtaining special advantages for their members. 46. The interference was further necessary in a democratic society for the protection of the rights of others. The legislature enjoyed a wide margin of appreciation in this regard as the Act concerned Germany’s social and economic policy and only affected an accessory aspect of trade union freedom. It concerned all trade unions, large and small, in the same manner, since the question of which trade union had the majority of members in a particular business unit was usually uncertain. The Act therefore only induced all trade unions alike to coordinate their collective bargaining efforts, while retaining the right to bargain collectively and to take industrial action if necessary. In addition, procedural rights had been created to protect minority trade unions. 47. The Government submitted that this system worked in practice; in particular, section 4a § 2, second sentence, of the Collective Agreements Act had never yet been applied. None of the smaller unions had lost a considerable number of members or had become less relevant in collective bargaining as a result of the impugned Act. In essence, the legislation had reintroduced the principle of uniformity of collective agreements which had been applied by the Federal Labour Court for decades prior to the reversal of its case-law (cf. paragraph 9 above). (c)   The third-party interveners
48. Both the German Trade Union Confederation (Deutscher Gewerkschaftsbund (DGB)) and the Confederation of German Employers’ Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA)) considered the Uniformity of Collective Agreements Act to be compatible with Article 11 of the Convention also in the light of international labour law, which permitted privileging representative trade unions (see the ILO CFA’s practice cited in paragraph 32 above). They further stressed that according to the comparative law material which they had obtained and submitted, most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. They confirmed that minority trade unions had still been able to conclude applicable collective agreements in practice, either by agreements to exclude the application of section 4a § 2 of the Collective Agreements Act (see also paragraphs 20 and 43 above) or by precluding conflicts ex ante in the different collective agreements negotiated. 49. The German Railway stock corporation (Deutsche Bahn AG) and the Employers’ and Trade Association of Mobility and Transport Providers (Arbeitgeber- und Wirtschaftsverband der Mobilitäts- und Verkehrsdienstleister e.V. (AGV MOVE)) explained that the Uniformity of Collective Agreements Act, having incited the third applicant and a competing trade union to a minimum of cooperation, had allowed the German Railway stock corporation to enter into almost identical collective agreements with both trade unions and had thus facilitated uninterrupted provision of transport services and equal treatment of the different groups of employees. 50. Both the latter third-party intervener and the Aviation Employers’ Association (Arbeitgeberverband Luftverkehr (AGVL)) further submitted that the impugned Act provided an appropriate and practicable solution in case of conflicting collective agreements and thus legal certainty, inter alia as regards working time models. This was essential for running a railway or aviation business necessitating complex coordination of different staff members’ work.

Outcome for Article 11: no_violation