Right to collective bargaining
RELEVANT LEGAL FRAMEWORK THE DOMESTIC LEGAL FRAMEWORKProvision of the Basic Law Provision of the Basic Law Provision 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 The parties’ submissions The 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. The Court’s assessment (a) Whether there was an interference 51. The Court observes that the impugned provisions of the Uniformity of Collective Agreements Act, by which, in particular, section 4a § 2, second sentence, was inserted into the Collective Agreements Act, may lead to a collective agreement concluded by a trade union with an employer becoming fully inapplicable if a conflicting collective agreement – which contains at least partly differing provisions on working conditions and overlaps with the minority union’s agreement as regards the place, time, business unit and employees’ position covered (see paragraphs 9 and 20 above) – has been concluded by another trade union having more members in the business unit of the company concerned. Moreover, as a result of the impugned provisions of the Uniformity of Collective Agreements Act, by which sections 2a § 1 no. 6 and 99 were inserted into the Labour Courts Act (see paragraph 30 above), trade unions may be obliged to disclose the number of their members in a business unit in the labour court proceedings to determine the majority union, and thus their strength in case of industrial action. These provisions interfere with the applicants’ right to form and join trade unions under Article 11 § 1 of the Convention, which includes a right, held by both trade unions and their members, to bargain collectively with the employer (compare, inter alia, Demir and Baykara v. Turkey [GC], no. 34503/97, § 154, ECHR 2008). (b) Whether the interference was justified (i) Prescribed by law 52. The Court considers that the legal basis for the interference with the applicants’ right to form and join trade unions, the Uniformity of Collective Agreements Act read in conjunction with the provisions amended by that Act (in particular section 4a of the Collective Agreements Act and sections 2a § 1 no. 6 and 99 of the Labour Courts Act), was formulated with sufficient precision to enable the persons concerned to regulate their conduct and thus foreseeable in its application. In particular, the fact that the interpretation of the term “business unit” in section 4a of the Collective Agreements Act and the criteria for including persons as “employees” for the purposes of that provision were questions of judicial practice does not alter that finding, in particular as these terms are common in the labour courts’ practice. The impugned interference was thus “prescribed by law” for the purposes of Article 11 § 2. (ii) Pursuit of a legitimate aim 53. The Court observes that the legislator adopting the Uniformity of Collective Agreements Act was notably faced with conflicting interests of different groups of employees organised in competing trade unions, and also with the employers’ interests. It considers that, as a matter of principle, granting an unfettered liberty notably to trade unions to conclude a multitude of collective agreements in the same business unit could run counter to the legitimate interest of keeping peace and solidarity within that economic unit. It is therefore legitimate for a legislator to try to strike a fair balance between the aim of ensuring peace and solidarity in a business unit and the unlimited liberty of competing trade unions to negotiate separate collective agreements in the same economic unit. The Court has further recognised that State measures to ensure a coherent and balanced staff policy, taking due account of the occupational interests of all staff and not only of those of certain categories of staff, pursue a legitimate aim (see National Union of Belgian Police v. Belgium, 27 October 1975, § 48, Series A no. 19, in the context of Article 11 read in conjunction with Article 14). It notes that the impugned provisions of the Uniformity of Collective Agreements Act are intended to ensure the proper and fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also to facilitate an overall compromise (see paragraphs 19 and 28 above). They thus serve to protect the rights of others, namely, in particular, the rights of employees not holding key positions and of trade unions defending their interests, but also the rights of the employer, and thus pursue a legitimate aim for the purposes of Article 11 § 2. (iii) Necessity of the interference in a democratic society (α) Relevant principles 54. As for the proportionality of interferences with trade-union activity, the Court reiterates that in cases concerning the freedom to form and join trade unions, the breadth of the States’ margin of appreciation will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 86, ECHR 2014). The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the specialised international instruments (see Demir and Baykara, cited above, § 85; National Union of Rail, Maritime and Transport Workers, cited above, § 86; and Association of Academics v. Iceland (dec.), no. 2451/16, § 25, 15 May 2018). 55. The sensitiveness of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and the high degree of divergence between the domestic systems in this field, are elements indicative of a wide margin of appreciation of the Contracting States as to how trade union freedom and protection of the occupational interests of union members may be secured (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 133, ECHR 2013 (extracts); National Union of Rail, Maritime and Transport Workers, cited above, §§ 86 and 91; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, no. 45487/17, §§ 97 and 114, 10 June 2021). In respect of the social and economic strategy of the respondent State, to which the ability of trade unions to protect the interests of their members relates, the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected Parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and which legislative measures are best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy ( National Union of Rail, Maritime and Transport Workers, cited above, § 89). Therefore, such interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade-union freedom are concerned ( National Union of Rail, Maritime and Transport Workers, cited above, § 87). 56. The substance of the right to freedom of association under Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, ECHR 2008; Association of Academics, cited above, § 23; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 94). 57. The essential elements of the right to freedom of association have been established, in a non-exhaustive list subject to evolution, as: the right to form and join a trade union; the prohibition of closed-shop agreements; the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and, in principle, the right to bargain collectively with the employer (see Demir and Baykara, cited above, §§ 145 and 154, and Sindicatul “Păstorul cel Bun”, cited above, § 135). 58. The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 95). 59. Whereas the right to take industrial action has not been considered as an essential element of trade union freedom, strike action is clearly protected by Article 11 as part of trade union activity (see Association of Academics, cited above, §§ 24-27, with further references, and National Union of Rail, Maritime and Transport Workers, cited above, § 84). Yet, the right to collective bargaining has not been interpreted as including a “right” to a collective agreement (see National Union of Rail, Maritime and Transport Workers, cited above, § 85; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 93). 60. States remain free to organise their collective bargaining system so as, if appropriate, to grant special status to representative trade unions (see Demir and Baykara, cited above, § 154, and Tek Gıda İş Sendikası v. Turkey, no. 35009/05, § 33, 4 April 2017). The Court has thus considered a general policy of restricting the number of organisations which are (formally) consulted in the collective bargaining process and with which collective agreements are to be concluded to larger unions or unions which are more representative of all staff of an entity as compatible with trade union freedom where the other unions were heard in a different manner (compare National Union of Belgian Police, cited above, §§ 39-41 and 48; Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, §§ 8-9, 40-42 and 46, Series A no. 20; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000). The Court further confirmed in this context that such a policy did not infringe union members’ right to join or remain member of a smaller or less representative trade union, which they fully retained, despite the fact that the disadvantages at which these unions were placed could lead to a decline in their membership (see National Union of Belgian Police, cited above, § 41, and Swedish Engine Drivers’ Union, cited above, § 42). (β) Application of these principles to the present case 61. When assessing the proportionality of the impugned provisions, the Contracting States must be afforded a margin of appreciation. The breadth of the margin depends inter alia on the nature and extent of the restriction on trade union freedom and in particular the right to collective bargaining by these provisions in the entire regulatory context (compare paragraph 54 above). 62. The Court observes in this regard that the essential restriction brought about by the Uniformity of Collective Agreements Act is that a conflicting collective agreement (which overlaps with another trade union’s agreement as regards the place, time, business unit and employees’ position covered and contains at least partly differing provisions on working conditions, see paragraphs 9 and 20 above) concluded by a trade union which did not have the highest number of members employed within the business unit of the company concerned becomes inapplicable (see the new section 4a § 2, second sentence, of the Collective Agreements Act, at paragraph 27 above). 63. The Court notes that the trade unions concerned do not lose the right as such to bargain collectively – and to take industrial action in that context if necessary – and to conclude collective agreements. Section 4a of the Collective Agreements Act intends to encourage trade unions to coordinate their collective bargaining negotiations. In the event of a failure of coordination, it provides for different legal effects regarding the conflicting collective agreements concluded with the employer (in that only the collective agreement concluded by the largest trade union within the business unit remains applicable). 64. The Court further observes that the extent of the restriction on trade union freedom and in particular the right to collective bargaining by the said provision is limited in several respects. In particular, in accordance with section 4a § 4 of the Collective Agreements Act as interpreted by the Federal Constitutional Court (see paragraphs 27 and 21 above), the trade unions whose collective agreements became inapplicable are entitled to adopt the legal provisions of the collective agreement of the majority union in their entirety. These unions are not, therefore, left without any collective agreement against their will. 65. Moreover, under section 4a § 5 of the Collective Agreements Act (see paragraph 27 above), minority trade unions retain the right to effectively present claims and make representations to the employer for the protection of the interests of their members, to negotiate with the employer and to conclude collective agreements. The Federal Constitutional Court, in its interpretation of that provision, even further strengthened the minority trade unions’ right to be heard. It found that minority trade unions’ conflicting collective agreements would not become inapplicable where the statutory duty to hear these unions had not been observed (see paragraph 21 above). Furthermore, a conflicting collective agreement could only become inapplicable under section 4a § 2 of the Collective Agreements Act if the majority trade union had seriously and effectively taken into account the interests of the employees of particular professions or sectors whose collective agreement became inapplicable (see paragraphs 14 and 22 above). 66. In addition, longer-term benefits such as contributions to a pension in a minority union’s agreement could only be rendered inapplicable if there was a comparable benefit in the majority union’s agreement (see paragraph 20 above). Moreover, according to the Federal Constitutional Court, in the procedure to determine which of several trade unions have the majority of members in that unit and whose collective agreement is thus applicable under section 99 of the Labour Courts Act, the disclosure of the number of trade union members in a business unit should, if possible, be avoided (see paragraphs 30 and 21 above). 67. In view of the scope of the restriction on collective bargaining, the interference with the applicants’ right to collective bargaining cannot be regarded as affecting an essential element of trade-union freedom, without which that freedom would become devoid of substance. As shown above (see paragraph 59), the right to collective bargaining does not include a “right” to a collective agreement. What is essential is that trade unions may make representations to and are heard by the employer, which the impugned provisions of the Collective Agreements Act effectively guarantee in practice. Furthermore, it was expressly clarified by the Federal Constitutional Court (see paragraph 17 above) that minority trade unions’ right to strike as an important instrument to protect the occupational interests of their members was not curtailed by the impugned provisions. 68. The Court would observe that in its case-law, it considered more far ‑ reaching restrictions on the right to collective bargaining, particularly the complete exclusion of a right of minority or less representative unions to conclude collective agreements at all, as compatible with Article 11 (see paragraph 60 above). 69. In this respect, the Court recalls that the breadth of the States’ margin of appreciation depends also on the objective pursued by the contested restriction and the competing rights of others who are liable to suffer as a result of the unrestricted exercise of the right to bargain collectively (see paragraph 54 above). The Court refers to its above finding that the impugned provisions are aimed, in particular, at ensuring a fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also at facilitating an overall compromise. These objectives, which protect the rights of the said other employees and of trade unions defending their interests, but also the rights of the employer, must be considered to be very weighty in that they are aimed at strengthening the entire system of collective bargaining and thus also trade union freedom as such. 70. The Court observes that it has repeatedly noted a high degree of divergence between the domestic systems in the sphere of protection of trade union rights (see paragraph 55 above). It further emerges from its case-law that several other States, like the respondent State, have systems restricting in one way or another the conclusion of (applicable) collective agreements to larger unions or unions which are more representative of all the staff of an entity (see the cases cited in paragraph 60 above). The comparative law material submitted by the third party interveners (see paragraph 48 above) and not contested by the parties equally confirmed that most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. Legal systems permitting only “representative” trade unions to conclude collective agreements – which are more restrictive than the impugned provisions at issue in the present case – were further considered compatible with the pertinent ILO instruments – notably where minority unions, as in the present case, maintain the right to make representations on behalf of their members – and the European Social Charter (see paragraphs 31 to 33 above). 71. Having regard to the above elements – in particular, the limited extent of the restriction on the right to collective bargaining particularly of smaller trade unions by the impugned provisions in the entire regulatory context and the weighty aim to secure the proper functioning of the system of collective bargaining as such in the interests of both employees and employers – the Court concludes that the respondent State had a margin of appreciation as regards the restriction on trade union freedom at issue. 72. That margin of appreciation is to be afforded all the more as the legislature had to make sensitive policy choices in order achieve a proper balance between the respective interests of labour – including the competing interests of different trade unions – and also of management. The parties have not contested the quality of the legislative process leading to the adoption of the Uniformity of Collective Agreements Act (see also paragraph 28 above). 73. The Court would further add that in the light of its case-law (see paragraph 60 above) the fact that the impugned provisions may lead to a loss of attractivity and thus a decline in the membership of smaller trade unions often representing specific professional groups does not as such infringe union members’ right to join or remain member of such trade unions, which they fully retain. 74. Having regard to the foregoing, the Court concludes that the facts of the present case do not disclose an unjustified interference with the applicants’ right to collective bargaining, the essential elements of which they are able to exercise, in representing their members and in negotiating with the employers on behalf of their members. Since the respondent State enjoys a margin of appreciation in this area, which encompasses the impugned provisions, there is no basis to consider these provisions as entailing a disproportionate restriction on the applicants’ rights under Article 11. 75. There has accordingly been no violation of Article 11 of the Convention.
The Court held that there had been no violation of Article 11 of the Convention, finding that there had been no disproportionate restriction on the applicants’ rights in the present case. The Court reiterated in particular that the right to collective bargaining as guaranteed under Article 11 of the Convention did not include a “right” to a collective agreement. What was essential was that trade unions could make representations to and be heard by employers. In this case, the Court found that the restrictions brought on by the legislation had concerned smaller trade unions, which nonetheless retained other rights, including the right to collective bargaining and to strike. Moreover, the legislation was intended to ensure the proper functioning of the collective bargaining system in the interests of both employees and employers.