Decided 12 November 2008 End date November 12, 2008 | Transcript(s) Full text of judgment | |
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Citation(s) [2008] ECHR 1345, (2009) 48 EHRR 54 Judge(s) sitting Judge Rozakis (President); Judges Bratza, Tulkens, Casadevall, Bonello, Türmen, Traja, Zupančič, Zagrebelsky, Pavlovschi, Garlicki, Gyulumyan, Mijović, Spielmann, Šikuta, Villiger, Hirvelä Ruling court European Court of Human Rights Similar Wilson and Palmer v United Ki, International Transport Workers, Associated Society of Locomoti, Laval Un Partneri Ltd v Svensk, Commission v Germany (1987) | ||
Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.
Contents
Facts
Mr Vemal Demir was a member, and Mrs Vicdan Baykara was the president, of the Turkish trade union for civil servants, Tüm Bel Sen. The union signed a two-year collective agreement in 1993, but the employer, the Gaziantep Municipal Council did not comply with its provisions. Demir and Baykara brought proceedings in the District Court, and won their claim. However, on appeal the Court of Cassation quashed the decision. This Court held there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood".
The matter was then remitted to the District Court, which in defiance restated its view that Demir and Baykara did have a right to collective agreements, because this accorded with International Labour Organisation Conventions ratified by Turkey. But again, the Court of Cassation overturned the District Court's decision. Furthermore, a separate claim in the Audit Court had been brought, which found that civil servants had no authority to engage in the collective agreement, and so the civil servants had to get the union to repay extra benefits it had got under the "defunct" collective agreement.
After these domestic avenues were exhausted, in 1996 the union made an application to the European Court of Human Rights, alleging breach of freedom of association under article 11 ECHR and protection against discrimination under article 14 ECHR. After some time, in 2006, the case was heard by seven judges of the second section. It was held that article 11 had been violated, and there was no need to examine article 14. The Turkish Government then requested that the matter be referred to the Grand Chamber.
Judgment
The Grand Chamber of the European Court of Human Rights held unanimously that there had been a disproportionate and unjustified interference with the right to freedom of association.
The Grand Chamber then turned to whether the Court of Cassation's annulment of the collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years was lawful, based on its interference with article 11 ECHR.
3. Whether there was interference
(a) General principles concerning the substance of the right of association
(i) Evolution of case-law
(ii) The right to bargain collectively
Significance
Demir and Baykara v Turkey has widely been seen as a landmark case in the international development of freedom of association. Its significance lies in confirming that there is an inherent right to collective bargaining protected by article 11 ECHR, within the right to freedom of association. Only interference that is strictly necessary in a democratic society can be justified.
A particular point of interest is its apparent tension with decisions of the European Court of Justice of the European Union in The Rosella and Laval, which held that there is a qualified right to strike, but one which can only be exercised when it does not disproportionately affect the EU business right to freedom of establishment or providing services. It is highly open to question that these two cases, which preceded the judgment in Demir could be reconciled, given that Convention jurisprudence places the emphasis on justifying restrictions on the human right to free association, and would seem to favour greater attention to the need to collectively bargain. This had led to predictions that there could be a "showdown" between the Strasbourg and Luxembourg courts. Ewing and Hendy write,
It is difficult then to see how the ECtHR could avoid upholding Article 11 and the right to collective bargaining and to strike over the business freedoms contained in what are now Articles 49 and 56 of the TFEU. And so issues would bat to and fro between the two courts in a titanic battle of the juristocrats, each vying for supremacy in the European legal order, one determined to impale trade union rights on the long lance of economic freedom and the other subordinating economic freedom to the modest demands of human rights and constitutionalism.