Streikrecht für Beamte – Folge einer Fehlrezeption? - 10.1628/000389117X15054009148824 - Mohr Siebeck

Anna-Bettina Kaiser

Streikrecht für Beamte – Folge einer Fehlrezeption?

Rubrik: Kleine Beiträge
Archiv des öffentlichen Rechts (AöR)

Jahrgang 142 () / Heft 3, S. 417-441 (25)

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Over the past few years, ECtHR decisions have influenced German courts' jurisprudence to an increasing extent. However, little is known about the ways in which German courts deal with those judgments; and even less is known about the theoretical underpinnings of this process of reception. This article provides a first attempt such a theory by analysing what might soon become a new test case for the relationship between German courts and ECtHR: civil servants' contested right to strike. Taking a constitutional law perspective, this article analyses both methodological as well as genuinely legal problems that arise from implementing judgments that draw on diverse legal regimes – and of an all-too-quick reception of seemingly explicit wordings in the ECtHR's judgments by national courts. Civil servants' right to strike illustrates both aspects of this problem: few rights link back to national peculiarities in a similar manner, and only few courts seem to have all legal consequences of this diversity fully in mind when receiving ECtHR judgments. An analysis of the provisions of the German Basic Law as well as a comparative overview of some neighbouring states shows how embedded civil servants' right to strike is in a more general system of rules regarding the civil service. Recent cases before the ECtHR have arguably placed a growing strain on the German tenet: a general prohibition of strikes for one specific group of civil servants, Beamte. The article suggests seven elements of a theoretically and methodologically sophisticated handling of these judgments by German courts. First, ECtHR judgments need to be contextualised. They must not be understood from an abstract point of view but from a very concrete one: in light of the specific circumstances of each case. Some methodical inspiration might in this respect be gained from case law systems. Second, in a multi-lingual setting, special attention should be paid to terms and their translations. Meanings can change fundamentally if terms are employed without due care. Third, interpretation of the ECHR often implies a comparative approach. However, comparisons are misleading if legal provisions are wrongly conceived of as functional equivalents. Rights are entangled with other provisions, and often relations of mutual influence, if not dependence are the result. Fourth, potential leeway in ECtHR judgments must not be interpreted so as to evoke inconsistencies of national provisions and the verdict. Fifth, if – what might only arise in very few instances – one of its judgments exhibits fundamental methodological deficits, legal consequences should be drawn. Sixth, bad cases make bad law; in this sense, borderline cases should be treated as such and not as representative of the whole range of possible cases. Lastly, fundamental differences between ECtHR cases and cases before national courts can limit the so-called effect of orientation which ECtHR judgments usually have.

Anna-Bettina Kaiser Geboren 1976; Studium der Rechtswissenschaften an der Universität Freiburg i. Br., 2001 Master of Law an der Universität Cambridge; 2004–10 wissenschaftliche Assistentin an der Universität Freiburg i Br.; 2007 Promotion; 2010–14 Juniorprofessorin, seit 2014 Professorin für Öffentliches Recht und Grundlagen des Rechts an der Humboldt-Universität zu Berlin; 2017 Habilitation.