84 BVerfGE 212 (1991)
The origin of this case is a collective bargaining process in the printing industry in 1977-1978. The national union for the printing industry aimed at getting concessions from the employers with respect to the introduction of computerized newspaper printing and the resulting endangerment of thousands of jobs. After several stages of negotiation and a failed arbitration attempt, short-term strikes and refusals to work overtime occurred from November 25, 1977 onwards. On February 28, 1978 the union declared unlimited strikes in four corporations. Initially the employers responded with lock-outs that were limited in time and location. By mid-March six corporations were affected by the strikes and according to the fact-finding of the court below 4,300 workers were on strike. In response, on March 12, the centralized strike management of the three involved employer associations demanded in a declaration from its members to lock-out all employees in technical areas everywhere in Germany and for an unlimited time. Not every employers complied with the centralized strategy. The lock-out finally ended on March 20, 1978. The decision does not mention the outcome of the collective bargaining.
The union for the printing industry then sued the corporation which later brought this case before the Federal Constitutional Court. That corporation was not a member of any of the three employer associations which organized the lock-out. The union sued for some disputed compensation during the lock-out. At the trial level and on the first appeal the union lost. However, the appeal to the Federal Labor Court was successful. As part of that decision, the Federal Labor Court declared the lock-out illegal. The court noted that generally lock-outs are a permissible strategy for employers in a collective bargaining process. However, the court continued, the right to lock-out is limited by the principle of proportionality which encompasses issues of necessity, suitability and numerical proportionality.
The Federal Labor Court used the principle of proportionality and found that the lock-out had violated it. The court found that from February 28, 1978 onward about 52,000 working days were lost due to strikes of about 4,300 workers. It then noted that the declaration of the of the centralized strike management of the employers called for a lock-out of 130,000 workers. The court contrasted the 52,000 working days which were lost due to the strikes with 130,000 working days would have been lost each day had every employer complied with the centralized strike management of the employers. The Federal Labor Court concluded that the lock-out was clearly out of proportion and declared it illegal.
The corporation which lost in the Federal Labor Court then filed a constitutional complaint with the Federal Constitutional Court. Among other things, the corporation contended that the decision of the Federal Labor Court violated its rights as protected by Article 9.3. of the Basic Law.
Does the decision by the Federal Labor Court that the nation-wide lock-out was illegal violate Article 9.3. of the Basic Law?
Holding by the First Senate:
No, it does not.
First the Federal Constitutional Court found the complaint permissible.]
The constitutional complaint is unjustified. The petitioner is not being violated by the challenged decision [of the Federal Labor Court] in its basic rights.
Article 9.3. of the Basic Law is not being violated. The challenged decision indeed does interfere with the freedom of coalition of the petitioner. The interference, however, is reconcilable with the Basic Law.
1. a) Article 9.3. of the Basic Law grants the right to form association to safeguard and improve working and economic conditions. From the general freedom of association of Article 9.1. of the Basic Law the freedom of coalition [of Article 9.3. of the Basic Law] differs in that it includes in the basic right protection a certain purpose of [the right to freedom of] association. The formation of associations with the purpose to safeguard and improve working and economic conditions has been fought against by the state especially strongly at times in the past. This explains the particular basic right protection going beyond Article 9.1. of the Basic Law which [applies] to the formation of such association in the social order of the state.
The freedom of coalition applies according to Article 9.3. of the Basic Law to everyone and to all trades, occupations and professions. [The freedom of coalition] is therefore, despite the fact that it historically applied only to employees and was fought for and won by them, not designed as a basic right [solely] for employees but also applies to employers. Insofar the Basic Law follows the regulation of the Weimar Constitution (Article 165). The basic right is also not limited to the freedom of the individual to form, join, not join or leave such an association. [The right] moreover protects the coalition itself in its existence, its organizational scheme and activity... This is, in contrast to the Weimar Constitution, not explicitly expressed but nevertheless results from the inclusion in the basic right protection of a purpose of the right to freedom of association (*).
An essential purpose of the coalitions protected by Article 9.3. of the Basic Law is the achievement of wage agreements. In that [activity] the association shall be free according to the will of the Basic Law (*). The choice of means which [the coalitions] deem useful in achieving [such wage agreements] is principally being left to the coalitions by Article 9.3. of the Basic Law (*). As far as the pursuit of the purpose of the association is dependent on the utilization of certain means, [such means] are also protected by the basic right.
To the protected means also belong tools of collective bargaining which are aimed at the achievement of wage agreements. Such means are at least covered by the freedom of coalition as far as they are necessary to ensure a functioning of free collective bargaining. This is also supported by Article 9.3. of the Basic Law. Whether a lock-out is part of the protected tools of collective bargaining has been left open by the Federal Constitutional Court and the Federal Labor Court including the challenged decision (*). However, the Federal Labor Court [in the challenged decision] deems the suspensory defensive lock-out (suspendierende Abwehraussperrung) as a reaction to limited partial strikes under the given economic circumstances a prohibited means for the maintenance of a functioning free collective bargaining. This is not objectionable from a perspective of constitutional law.
[The Federal Constitutional Court] need not decide comprehensively to what extend lock-outs are generally protected by the constitution. The protection includes in any case lock-outs of the kind at issue here, [lock-outs] which as a defense and with suspensory effect are used against partial or focused strikes to establish a parity of bargaining. Such lock-outs do not generally have the result to interfere with the parity of bargaining... Under which circumstances and to what extend a coalition may employ the constitutionally protected means is, as in the case of strikes, not a question of the protected sphere, but [a question] of the organization of the basic right by the legal order.
b) In the stated extend the petitioner is protected by Article 9.3. of the Basic Law. Even a corporation which as an outsider joins a lock-out of an [employer association is acting within the meaning of coalition. Such joining of an outsider with an employer association entitled to negotiate wage agreements ] can be within the meaning of Article 9.3. of the Basic Law, if [such joining] is aimed at influencing an achievement of a wage agreement in the interest of the outsider. [The court next finds that the wage agreement sought in the present case would also be binding on the outsider petitioner because its wages are keyed to the wages negotiated in the agreement. Therefore the court finds an coalition within the meaning of Article 9.3. of the Basic Law.]
c) The challenged decision limits the authority of the petitioner to join a defensive lock-out with suspensory effect as a reaction to a partial strike of the unions. In this lies a limitation of the freedom guaranteed in Article 9.3. of the Basic Law to [participate in coalitions]. This limitation, however, is not objectionable from a perspective of constitutional law.
[Next the Federal Constitutional Court finds that the Federal Labor Court had the necessary authority to decide the challenged decision.]
3. The challenged decision also does not violate Article 9.3. of the Basic Law in regard to content.
a) It is true that the basic right to freedom of coalition is granted unconditionally. This however does not preclude every limitation from the outset. [Such limitations] can be justified by basic rights of third persons and by other rights of constitutional rank (*). In addition, the freedom of coalition requires an organization by the legal order so far as the relation of the parties to the collective bargaining who both enjoy the protection of Article 9.3. of the Basic Law is being touched upon. Whether the legislator has additional authority to regulate for the protection of other legal values need not be explored (*). The limitations to the right to lock-out provided for in the challenged decision can already be explained with the protection of contrary basic rights of employees and their organizations from Article 9.3. of the Basic Law.
The case does not provide an occasion to define more closely the boundary of core sphere of the freedom of coalition (*). Surely to this [core sphere] belongs the ability to negotiate of both social counterparts, that is also of the employers, in the battle of collective bargaining. [However, neither this ability to negotiate, nor the ability to collectively bargain effectively of the employer] is being endangered by the challenged decision. The limitations imposed upon the petitioner of their right to lock-out neither violate the essential content of the freedom of coalition (Article 19.2. of the Basic Law) nor interfere with the basic right in a manner which is out of proportion (*).
[Next the Federal Constitutional Court reviews and approves the mode of analysis of the Federal Labor Court.]
c) The Federal Labor Court also did not... fundamentally [misapply] the freedom of coalition of the petitioner. The declaration of the employer associations demanding lock-out covered about 130,000 employees [in a situation] with about 4,300 striking employees. The numerical relation is therefore about thirty to one. For each day of the battle of collective bargaining two-and-a-half times more working days were supposed to be lost due to the lock-out than had already been lost due to the strikes called for by the union over two weeks. The Federal Labor Court [was entitled to use this numerical relation] to find the declaration of the employer associations illegal without such a finding constituting a limitation which is out of proportion of the petitioner=s [freedom of coalition]...
[Signed by all eight Judges]
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