German strike legislation does not fulfil standards of the European Social Charter
In February 1998, the Council of Europe recommended that the German Government amend its restrictive legal provisions, which limit the possibilities to take industrial action.
On 3 February 1998, the 40-nation Council of Europe's Committee of Ministers recommended that the German Government change the country's restrictive legal provisions on industrial action. According to a recommendation (No. RChS(98)2) agreed by an absolute majority of two-thirds of the Council of Europe's members, the German legislation on strikes does not conform with the Council's European Social Charter in which the contracting parties recognise: "the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into" (Article 6, para. 4).
Although there is no specific law on strikes in Germany, the basic right to take industrial action is based on the guarantee of freedom of association in the Basic Law (Grundgesetz). However the existing law on industrial action has evolved almost entirely on the basis of court judgments. During the past decades, the Federal Labour Court (Bundesarbeitsgericht) has created several restrictions on the possibilities to take industrial action. To be valid, a strike must be conducted by a trade union, and must pursue an aim that can be regulated by collective agreement. Furthermore, the decision to call a strike must follow the ultima ratioprinciple, which means that strike must represent the last resort as a means of achieving the aim in a dispute. Therefore, so-called "wildcat strikes" which are not supported by a union as well as "protests or solidarity strikes" are not legal in Germany.
The German legislation on strikes has been criticised by the Council of Europe's Committee of Independent Experts for a long time. In the Council's view, the European Social Charter allows no preconditions or restrictions on the right to strike, with the exception of those restrictions which might arise out of a collective agreement - as is the case, for example, with the German peace obligation (Friedenspflicht). In its February statement, the Committee of Ministers recommends that even strikes which are not aimed at achieving a collective agreement or not called or endorsed by a trade union should become legal in Germany.
After the Council of Europe made its recommendation, the German Federation of Trade Unions (Deutscher Gewerkschaftsbund, DGB) declared that international standards for strikes as a basic human right must become valid in Germany. The DGB vice-president, Ursula Engelen-Kefer, said that protest and solidarity strikes must become legally possible in Germany as they are in other countries. Although there was no official comment on the Council's recommendation by the German Employers' Federation (Bundesvereinigung der deutschen Arbeitgeberverbände, BDA), a BDA spokesperson recently declared that in their view strikes are "old-fashioned" and should be replaced by "modern ways of conflict solving".