Status: 03/01/2023 4:02 p.m
Can civil servant teachers go on strike to fight for better working conditions? Three female and one male teacher are advocating this before the European Court of Human Rights.
In February 2009, the teacher Kerstin Wienrank stopped working. Together with thousands of public sector employees, she took to the streets in Hanover. The Education and Science Union (GEW) and other unions had called for all-day warning strikes. Collective bargaining was going on for the public sector, and the strike was supposed to create “pressure,” remembers Wienrank. It was also about higher wages for employed teachers.
But Kerstin Wienrank is a civil servant teacher. And anyone who is a civil servant is not allowed to go on strike in Germany. So Wienrank should have been at school. She was absent from school for a day, missed four lessons.
In July 2009 her salary was reduced by around 150 euros. She later received an additional fine of 100 euros. “It was the only time I went on strike,” says Wienrank. “But I knew even then that there would be consequences and I was ready to face them.”
As part of the disciplinary proceedings against her, she later wrote that she advocated that “the collective bargaining results that had been fought for be transferred directly to the civil service sector”. She followed the call to a “moderate extent”. She also considered this to be responsible, since “internal school regulations and agreements could not cause ‘damage’ for the pupils”.
Large chamber rarely hears cases from Germany
The Grand Chamber of the European Court of Human Rights has now heard about her case and that of two other teachers. The four teachers had all unsuccessfully appealed against the fines imposed on them in German courts.
The Court referred the case directly to the Grand Chamber, which is made up of 17 judges from Council of Europe member states. In other words, he attaches particular importance to the procedure. It is very rare for the Grand Chamber to hear a complaint against Germany. During the hearing, the European judges had a series of critical questions for both sides. They will only speak a verdict in a few months.
The ECtHR
The European Court of Human Rights was established in Strasbourg in 1959 by the member states of the Council of Europe. It is intended to ensure compliance with the 1950 European Convention on Human Rights. The ECtHR, not to be confused with the ECJ, decides on individual and state complaints about alleged violations of the rights recognized in the European Convention on Human Rights.
The ECtHR has been a permanent court since 1998. Citizens can contact him directly with complaints after domestic remedies have been exhausted. The judgments rendered by the Court are binding on the States concerned.
Federal Constitutional Court: Officials have a duty of loyalty
In Germany, the Federal Constitutional Court dealt with the ban on strikes before the European Court of Human Rights. It rejected the constitutional complaints of the teacher and the three teachers in 2018.
The ban on strikes is an “independent traditional principle of the professional civil service” within the meaning of Article 33 Paragraph 5 of the Basic Law. Accordingly, the law of the public service is to be regulated and further developed, taking these principles into account.
The system of German civil service law is characterized by coordinated rights and obligations. Civil servants have a duty of loyalty to the state, so that it remains able to act at all times, even in crises. In return, the state has a duty of care towards civil servants. They are employed for life and must be paid appropriately. If in doubt, they can sue for an appropriate salary in court. Public servants can’t do that.
Strike ban only for public officials?
A right to strike for certain groups could affect the entire system, according to the Federal Constitutional Court at the time. A differentiation would lead to demarcation problems.
The teachers had argued that a ban on strikes was only permissible in relation to civil servants who act as officials, such as the police and the military. But not to teachers.
They have already relied on the case law of the European Court of Human Rights. In 2009, in a case from Turkey, he decided that the right to strike was not absolute. It can be made dependent on conditions or restricted. For example, it could be compatible with trade union freedom to ban strikes by public employees exercising sovereignty. However, according to the decision on the case from Turkey at the time, a ban on strikes should not be imposed for the public sector as a whole.
From the point of view of the federal government, this decision has led to uncertainty in German courts. She is now hoping for clarification that this decision cannot be transferred to Germany. In Europe, there were very different regulations for the civil service. In this respect, there is no consensus between the member states of the Council of Europe. The German legislature therefore has a wide scope for decision-making, said the representative of the federal government, Christian Walter, at the hearing.
The system of salaried and civil servant teachers
Another argument of the federal government: teachers with civil servants would have the opportunity to ask to be dismissed from the civil service and to be employed. Then she would have the right to go on strike.
Against this background, the Austrian judge Gabriele Kucsko-Stadlmayer asked the plaintiffs whether the plaintiffs had ever attempted to switch from their status as civil servants to an employment relationship. “Have you ever been denied this change?”
The answer is: no, they don’t. From the point of view of the GEW trade union, which supports the plaintiffs, this is also due to high factual hurdles. Teachers would lose pension entitlements and would have to take out private health insurance, says Maike Finnern, CEO of GEW. “And whether you’ll be allowed to work at school again afterwards as a teacher, that’s a long way from being said.” There is no legal guarantee that you will be reinstated afterwards.
In general, the German system with salaried and civil servant teachers raised questions: “How does that affect the schools?” asked the Slovenian judge Marko Bosnjak. “Is there a certain minimum number or percentage of permanent teachers in a school that is considered necessary to guarantee an adequate level of training?”
Who Would Benefit From Judgment?
Finally, the representative of the federal government warned against a verdict in favor of the teachers: “Who will benefit from a decision that finds a violation of the Convention? (…) The students and parents certainly not. (…) Maybe teachers in general.”
But he thinks that’s unlikely. The most likely consequence is not that civil servants would have the right to strike, but that teachers would no longer be civil servants.
The teachers’ representative, Rudolf Buschmann, had a different answer to the question: “Human rights would be the winners.”