Information Note on the Court’s case-law No. 91
November 2006
Demir and Baykara v. Turkey - 34503/97
Judgment 21.11.2006 [Section II]
Article 11
Article 11-1
Freedom of association
Refusal to recognise legal personality of civil service trade union already active for several years: violation
Form and join trade unions
Interests of members
Collective agreement already in force for two years declared null and void by court order: violation
[This case was referred to the Grand Chamber on 23 May 2007]
Facts: Three years after it was founded, a trade union for civil servants entered into a collective agreement regulating all aspects of working conditions in the offices of a municipal council. A representative of the union sued the council on the ground that it had defaulted on its obligations under that agreement. The court found that the applicable law at the time the union was founded did not permit civil servants to set up unions, and that the relevant Convention of the International Labour Organisation (ILO), ratified by Turkey, could not be relied upon in the absence of domestic implementing legislation. Accordingly, the union set up five years earlier had never enjoyed legal personality and had not been entitled to enter into collective agreements, as it had done over two years before in the case at issue.
Law: Right of civil servants in a municipal council to form a union:In the absence of any concrete evidence to show that the activities of the applicants’ union over the five-year period had constituted a threat to society or to the State, the refusal to accord it legal personality had entailed a violation of Article 11.
Cancellation of a collective agreement entered into two years earlier and applied since then:For two years the collective agreement had governed all working relations within the municipality. For the union it had thus been the principal or even the only means by which the union was able to promote and defend the interests of its members. Accordingly, the cancellation of that agreement, which had been in force and applied for two years in relations between the local authority and the union, had constituted interference with the freedom of association of the applicants, who were the chairperson and a member of that union.
At the time, the applicants had acted in good faith in choosing to enter into a collective agreement, as Turkey had already ratified ILO Convention no. 98, which afforded the right to bargain collectively and to enter into collective agreements. The domestic court had considered that it could not apply those provisions as the legislature had not yet provided for the implementation of Convention no. 98. The Court found that the argument based on an omission in the law – caused by a delay on the part of the legislature – was not sufficient in itself for it to be persuaded that the cancellation of a collective agreement, which had been applied for the past two years, fulfilled the conditions in which freedom of association might be restricted. In declaring null and void, with retrospective effect, a collective bargaining agreement after it had been in force and applied for almost three years, the State had failed to fulfil its obligation to secure enjoyment of the rights protected under Article 11.
Conclusion: violation (unanimously).
Article 41 – EUR 500 for pecuniary damage and EUR 20,000 for non-pecuniary damage.
See also Tüm Haber Sen andt Çınar v. Turkey, no. 28602/95, 21 February 2006, Information Note no. 83.
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This summary by the Registry does not bind the Court.
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