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Capacities to be Enjoyed by Non-Governmental Organizations

Demir and Baykara v Turkey, 12 November 2008 [ECtHR]

Case no 34503/97

C.  Annulment of a collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years

1.  The Chamber judgment

128.  The Chamber examined this point separately from the complaint concerning the refusal of the Court of Cassation to recognise the right of civil servants to form trade unions.

129.  As to the question whether there had been a breach of the applicants' trade-union rights, the Chamber considered that the Court's case-law did not exclude the possibility that the right to enter into a collective agreement might represent, in the particular circumstances of a case, one of the principal means – even the foremost of such means – for trade unionists to protect their interests. It noted the organic link between freedom of association and freedom to bargain collectively, as previously referred to by the Social Charter's Committee of Independent Experts.

130.  The Chamber, after observing that, in the present case, the trade union Tüm Bel Sen had persuaded the authority to engage in collective bargaining and to enter into a collective agreement, and that this agreement had for a period of two years governed all working relations between municipal-council staff and their employer, considered that this collective agreement represented for the trade union the principal, if not only, means of promoting and safeguarding its members' interests (see §§ 30-40 of the Chamber judgment).

131.  The Chamber also considered that the interference in question was prescribed by law and that the prevention of discrepancy between practice and the current domestic law could be regarded as a legitimate aim within the meaning of paragraph 2 of Article 11 (see § 42 of the Chamber judgment). As regards the justification for the interference, the Chamber found that no pressing need in this connection had been shown by the Government. It also found that Turkey had failed in its positive obligation under Article 11 to assist the applicants' union in defending its members' interests. (...)

3.  Whether there was interference

   (a)  General principles concerning the substance of the right of association

      (i)  Evolution of case-law

140.  The development of the Court's case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union's collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström v. Sweden, 6 February 1976, § 36, Series A no. 21).

141.  As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court's view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members' interests (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers' Union, cited above, § 40; and Schmidt and Dahlström, cited above, § 36).

142.  As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers' Union, cited above, § 39). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlström, cited above, § 34).

143.  Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members' interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (Wilson, National Union of Journalists and Others, cited above, § 44).

144.  As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in 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. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, whilst in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court's case-law.

145.  From the Court's case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tüm Haber Sen and Çınar, cited above), the prohibition of closed-shop agreements (see, for example, Sørensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (Wilson, National Union of Journalists and Others, cited above, § 44).

146.  This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 100, ECHR 2003‑II; and Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999‑V).

      (ii)  The right to bargain collectively

147.  The Court observes that in international law, the right to bargain collectively is protected by ILO Convention No. 98 concerning the Right to Organise and to Bargain Collectively. Adopted in 1949, this text, which is one of the fundamental instruments concerning international labour standards, was ratified by Turkey in 1952. It states in Article 6 that it does not deal with the position of “public servants engaged in the administration of the State”. However, the ILO's Committee of Experts interpreted this provision as excluding only those officials whose activities were specific to the administration of the State. With that exception, all other persons employed by government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the same manner as other employees, and consequently should be able to engage in collective bargaining in respect of their conditions of employment, including wages (see paragraph 43 above).

148.  The Court further notes that ILO Convention No. 151 (which was adopted in 1978, entered into force in 1981 and has been ratified by Turkey) on labour relations in the public service (“Convention concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service”) leaves States free to choose whether or not members of the armed forces or of the police should be accorded the right to take part in the determination of working conditions, but provides that this right applies everywhere else in the public service, if need be under specific conditions. In addition, the provisions of Convention No. 151, under its Article 1 § 1, cannot be used to reduce the extent of the guarantees provided for in Convention No. 98 (see paragraph 44 above).

149.  As to European instruments, the Court finds that the European Social Charter, in its Article 6 § 2 (which Turkey has not ratified), affords to all workers, and to all unions, the right to bargain collectively, thus imposing on the public authorities the corresponding obligation to promote actively a culture of dialogue and negotiation in the economy, so as to ensure broad coverage for collective agreements. The Court observes, however, that this obligation does not oblige authorities to enter into collective agreements. According to the meaning attributed by the European Committee of Social Rights (ECSR) to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations.

150.  As to the European Union's Charter of Fundamental Rights, which is one of the most recent European instruments, it provides in Article 28 that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels.

151.  As to the practice of European States, the Court reiterates that, in the vast majority of them, the right of civil servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas regarded as sensitive or certain categories of civil servants who hold exclusive powers of the State. In particular, the right of public servants employed by local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the majority of Contracting States. The remaining exceptions can be justified only by particular circumstances (see paragraph 52 above).

152.  It is also appropriate to take into account the evolution in the Turkish situation since the application was lodged. Following its ratification of Convention No. 87 on freedom of association and the protection of the right to organise, Turkey amended, in 1995, Article 53 of its Constitution by inserting a paragraph providing for the right of unions formed by public officials to take or defend court proceedings and to engage in collective bargaining with authorities. Later on, Law no. 4688 of 25 June 2001 laid down the terms governing the exercise by civil servants of their right to bargain collectively.

153.  In the light of these developments, the Court considers that its case‑law to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 (Swedish Engine Drivers' Union, cited above, § 39, and Schmidt and Dahlström, cited above, § 34) should be reconsidered, so as to take account of the perceptible evolution in such matters, in both international law and domestic legal systems. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others, cited above, § 56).

154.  Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one's] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on “members of the administration of the State” within the meaning of Article 11 § 2 – a category to which the applicants in the present case do not, however, belong (see paragraph 108 above).

   (b)  Application in the present case of the foregoing principles

155.  In the light of the foregoing principles, the Court considers that the trade union Tüm Bel Sen, already at the material time, enjoyed the right to engage in collective bargaining with the employing authority, which had moreover not disputed that fact. This right constituted one of the inherent elements in the right to engage in trade-union activities, as secured to that union by Article 11 of the Convention.

156.  As to the impugned collective agreement entered into after collective bargaining, the Grand Chamber, like the Chamber, takes note of the following facts:

“In the first place, the trade union Tüm Bel Sen persuaded the employer, Gaziantep Municipal Council, to engage in collective bargaining over questions that it regarded as important for the interests of its members and to reach an agreement in order to determine their reciprocal obligations and duties.

Subsequently, following those negotiations, a collective agreement was entered into between the employer and the union Tüm Bel Sen. All the rights and obligations of its members were provided for and protected under that agreement.

Moreover, the collective agreement was implemented. For a period of two years, with the exception of certain financial provisions that were in dispute between the parties, the collective agreement governed all employer-employee relations within Gaziantep Municipal Council.”

157.  Accordingly, the Court observes that the collective bargaining in the present case and the resulting collective agreement constituted, for the trade union concerned, an essential means to promote and secure the interests of its members. The absence of the legislation necessary to give effect to the provisions of the international labour conventions already ratified by Turkey, and the Court of Cassation judgment of 6 December 1995 based on that absence, with the resulting de facto annulment ex tunc of the collective agreement in question, constituted interference with the applicants' trade-union freedom as protected by Article 11 of the Convention.

158.  As to the applicants' arguments concerning the insufficiency of the new legislation with regard to the trade-union rights of civil servants, the Court points out that the object of the present application does not extend to the fact that the new Turkish legislation fails to impose on the authorities an obligation to enter into collective agreements with civil servants' trade unions, or to the fact that those unions do not have the right to strike in the event that their collective bargaining should prove unsuccessful.

4.  Whether the interference was justified

159.  The Court considers that the interference in question, namely the annulment ex tunc of the collective agreement that the trade union Tüm Bel Sen had entered into following collective bargaining with the authority that employed the applicants, should be regarded as having breached Article 11, unless it can be shown that it was “prescribed by law”, that it pursued one or more legitimate aims, in accordance with paragraph 2, and that it was “necessary in a democratic society” to fulfil such aims.

   (a)  Prescription by law

160.  The Government and the applicants agreed with the Chamber's finding that the interference in question was prescribed by law. For the purposes of the present case, the Grand Chamber can accept that the interference was prescribed by law, as interpreted by the combined civil divisions of the Court of Cassation, the highest judicial body to have ruled on the case.

   (b)  Pursuit of a legitimate aim

161.  The Court can also accept, like the Chamber and the parties themselves, that the interference in question, in so far as it aimed to prevent discrepancy between law and practice, pursued a legitimate aim: the prevention of disorder. As to the fact that the risk of such discrepancy was the result of the time taken by the legislature to adapt the legislation to Turkey's international commitments in the field of international labour standards, the Court considers that its assessment must likewise relate to the question whether such a measure was necessary in a democratic society.

   (c)  Necessity in a democratic society

162.  The Court refers in this connection to the case-law set out above concerning the negative and positive obligations imposed on the Government by Article 11 of the Convention (see paragraphs 119 and 110 above).

163.  As to the application of these principles in the present case, the Court notes that the Government have omitted to show how the impugned restriction was necessary in a democratic society, standing by their principal argument to the effect that the applicants, in their capacity as civil servants, did not have the right to bargain collectively or enter into collective agreements.

164.  The Court, performing its own examination, considers that at the material time a number of elements showed that the refusal to accept that the applicants, as municipal civil servants, enjoyed the right to bargain collectively and thus to persuade the authority to enter into a collective agreement, did not correspond to a “pressing social need”.

165.  Firstly, the right for civil servants to be able, in principle, to bargain collectively, was recognised by international law instruments, both universal (see paragraphs 147-148 above) and regional (see paragraphs 149‑150 above). Moreover, an examination of European practice shows that this right was recognised in the majority of member States (see paragraphs 52 and 151 above).

166.  Secondly, Turkey had in 1952 ratified ILO Convention No. 98, the principal instrument protecting, internationally, the right for workers to bargain collectively and enter into collective agreements (see paragraphs 42-43 and 151 above). There is no evidence in the case file to show that the applicants' union represented “public servants engaged in the administration of the State”, that is to say, according to the interpretation of the ILO's Committee of Experts, officials whose activities are specific to the administration of the State and who qualify for the exception provided for in Article 6 of ILO Convention No. 98.

167.  In these circumstances, the Grand Chamber shares the following consideration of the Chamber:

“The Court cannot accept that the argument based on an omission in the law – caused by a delay on the part of the legislature – was sufficient in itself to make the annulment of a collective agreement which had been applied for the past two years satisfy the conditions for any restriction of the freedom of association.”

168.  Moreover, the Grand Chamber observes that the Government failed to adduce evidence of any specific circumstances that could have justified the exclusion of the applicants, as municipal civil servants, from the right, inherent in their trade-union freedom, to bargain collectively in order to enter into the agreement in question. The explanation that civil servants, without distinction, enjoy a privileged position in relation to other workers is not sufficient in this context.

169.  The Court thus finds that the impugned interference, namely the annulment ex tunc of the collective agreement entered into by the applicants' union following collective bargaining with the authority was not “necessary in a democratic society”, within the meaning of Article 11 § 2 of the Convention.

170.  There has therefore been a violation of Article 11 of the Convention on this point also, in respect of both the applicants' trade union and the applicants themselves.

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