Will the ban on strikes for civil servant teachers be overturned?

Civil servant teachers in Germany are not allowed to strike. Some have taken legal action against this before the European Court of Human Rights. Now comes the verdict.

Three male and one female teachers have sued. Among them is Kerstin Wienrank. She is a civil servant teacher and went on strike in Hanover in February 2009, “the only time,” as she says. Together with thousands of public sector employees, she followed a warning strike call from the Education and Science Union (GEW). Collective bargaining was ongoing at that time. It was about more pay. The strike was intended to put “pressure”.

Actually, Kerstin Wienrank should have been at school at the time, because civil servant teachers are not allowed to go on strike in Germany. “I knew back then that there would be consequences and I was prepared to accept them,” she says. But she wanted to ensure that the collective bargaining results fought for by employees were transferred to the civil service sector. She also found it responsible to strike because “internal school regulations and agreements could not cause any ‘damage’ to students.”

Federal Constitutional Court confirms ban

Nevertheless, Wienrank’s salary was reduced and she received a fine. She had sued against this in German courts, just like her three colleagues. But without success – in 2018 the Federal Constitutional Court also rejected the lawsuits. Karlsruhe made it clear: The ban on strikes for civil servants is an “independent, traditional principle of the professional civil service” within the meaning of the Basic Law.

According to the Federal Constitutional Court, civil servants are not allowed to strike because they have a special duty of loyalty to the state. In German civil service law there is a special system of coordinated rights and obligations. The civil servants’ duty of loyalty is there to ensure that the state remains able to act even in crises. In return, the state also has a special duty of care. Civil servants are employed for life and are entitled to appropriate remuneration.

Strike bans only for police officers and soldiers?

The plaintiffs, on the other hand, say: The ban on strikes could be limited to certain groups of civil servants who play a special role in the state – police officers and soldiers, for example. They are basing this on a decision by the European Court of Human Rights (ECHR) from 2009. At that time, Strasbourg had a case from Turkey and said that the right to strike could be restricted. Strikes by public servants who exercise sovereign power, for example, could be banned. On the other hand, there should be no general ban on strikes in the public sector.

However, such a distinction between different groups of civil servants did not convince the Federal Constitutional Court in 2018. Karlsruhe pointed out that giving certain groups of civil servants the right to strike could affect the entire system.

Employed or civil servant: what role does that play?

At the hearing before the European Court of Human Rights, the federal government representative defended the strike ban. The ECHR decision from 2009 cannot be transferred to Germany. There are very different civil service systems in Europe. Germany must have some leeway in making decisions regarding its own system.

In addition, according to another argument from the federal government, teachers who are civil servants could ask to be released from their civil service status and be employed. Then they could also go on strike. However, the GEW union, which supports the plaintiffs, pointed out the high hurdles to such a change. Teachers would then lose their pension rights, said GEW federal chairwoman Maike Finnern. She emphasizes: “It’s still far from clear whether you’ll be allowed to work at school again afterwards.” There is no legal guarantee of being reinstated after changing from civil servant status.

A judgment with consequences

What is interesting about the case is that it was heard by the Grand Chamber of the European Court of Human Rights. 17 judges from the member states of the Council of Europe sit there and deal with cases of particular importance. The Grand Chamber of the ECHR had not previously dealt with cases in which Germany was sued. The Court therefore attaches great importance to the question of the right to strike for civil servant teachers.