Key facts of the case:
15. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the trade union’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul.
16. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare services.
17. As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993.
18. In a judgment of 22 June 1994, the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law.
19. On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.
20. In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a “collective” nature between civil servants’ unions and a public administration had to be grounded in specific legislation.
21. In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Turkish Constitution, were directly applicable in domestic law.
22. Among other things, the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally established entity which had filed its constitution with the provincial governor’s office a long time ago and which, since then, had carried on its activities without the slightest intervention by the competent authorities. The court added that, on this matter, there was no discrepancy between its judgment and that of the Fourth Civil Division of the Court of Cassation.
23. As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. In the court’s view, the same obligation also arose from Article 36 of the Turkish Constitution, under which everyone was afforded the right of access to a court. In this context the relevant provisions of the ILO conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that the applicant trade union did have the right to enter into collective agreements.
24. As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into, the court considered that, since it concerned employer-employee relations, the agreement was of a private-law nature. In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements. Consequently, the court found that the collective agreement between the applicant trade union and the Gaziantep Municipal Council had been a valid legal instrument with binding effect for the parties.
25. The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question.
26. In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Turkish Constitution were directly applicable to litigants, whereas others were not. In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a trade union and to bargain collectively, could not be exercised.
27. The Court of Cassation further considered that the principle of the individual’s free will was not absolute in respect of the establishment of legal entities. They could acquire legal personality, distinct from their constituent persons, only by complying with the formal conditions and procedures laid down by law for that purpose. The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders.
28. The Court of Cassation pointed out that the freedom to form associations, trade unions and political parties, even if provided for in the Turkish Constitution, could not be exercised simply by a declaration of the free will of individuals. As there was no specific law on the subject, the existence of such a legal entity could not be recognised. According to the Court of Cassation, this finding was not at odds with the principles of “the rule of law” and “democracy” mentioned in the Constitution, since supervision of legal entities by the State, in order to ensure public usefulness, was necessary in any democratic legal system.
29. The Court of Cassation further pointed out that the legislation in force at the time when the trade union was founded did not permit civil servants to form trade unions. It added that the amendments subsequently made to the Turkish Constitution, recognising the right of civil servants to form trade unions and bargain collectively, were not such as to invalidate the finding that Tüm Bel Sen had not acquired legal personality and, as a result, did not have the capacity to take or defend court proceedings.
30. An application by representatives of the trade union for rectification of that decision was rejected by the Court of Cassation on 10 April 1996.
31. Following an audit of the Gaziantep Municipal Council’s accounts by the Audit Court, the members of the trade union Tüm Bel Sen had to reimburse the additional income they had received as a result of the defunct collective agreement. The Audit Court, in a number of decisions that it gave as the court of last resort in respect of the collective agreements entered into by the trade union, pointed out that the rules applicable to civil servants, including the salaries and allowances to which they were entitled, were laid down by law. It further considered that, since the amendment on 23 July 1995 of Article 53 of the Turkish Constitution and the enactment on 25 June 2001 of Law no. 4688 on civil servants’ trade unions, such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation, but were not entitled to enter into valid collective agreements directly with the authorities concerned, unlike trade unions of ordinary contractual employees who could enter into such agreements with their employers. If an agreement was entered into between the employing authority and the trade union concerned, it could only become binding following its approval by the Council of Ministers. The Audit Court, after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions, decided that the accountants who had authorised higher payments than those provided for by law should reimburse the surplus amounts to the State’s budget.
32. The Audit Court refused to apply section 4 of Law no. 4688, which required the discontinuance of any administrative, financial or judicial proceedings brought against accountants who were responsible for such payments. It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the State for any losses sustained by it as a result of payments made in accordance with those agreements.
33. The accountants concerned in turn brought proceedings against the civil servants who were members of the trade unions and had benefited from the additional payments granted under the defunct collective agreements.
Outcome of the case:
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) to Mrs Vicdan Baykara, representative of the trade union Tüm Bel Sen, EUR 20,000 (twenty thousand euros) in respect of non‑pecuniary damage, to be distributed by her to the said trade union;
(ii) to Mr Kemal Demir, EUR 500 (five hundred euros) in respect of all heads of damage combined;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
SEPARATE OPINION OF JUDGE ZAGREBELSKY (Translation)
I would like to add to the reasoning in the judgment as regards the right of trade unions to bargain collectively by expounding a few considerations of my own on the subject of the Court’s departures from precedent.
1. On 6 February 1976 in the case of Swedish Engine Drivers’ Union v. Sweden (Series A no. 20) the Court found in its judgment as follows (§ 39): “... Article  does not secure any particular treatment of trade unions, or their members, by the State, such as the right that the State should conclude any given collective agreement with them. Not only is this latter right not mentioned in Article 11 § 1, but neither can it be said that all the Contracting States incorporate it in their national law or practice, or that it is indispensable for the effective enjoyment of trade union freedom.” The Court went on to conclude (§ 40): “... the members of a trade union have a right, in order to protect their interests, that the trade union should be heard. Article 11 § 1 certainly leaves each State a free choice of the means to be used towards this end. While the concluding of collective agreements is one of these means, there are others. What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests.” (see, also, a judgment of the same date, Schmidt and Dahlström v. Sweden, §§ 34-35, Series A no. 21, and National Union of Belgian Police v. Belgium, 27 October 1975, § 39, Series A no. 19). This case-law was referred to more recently, without being called into question, in 1996 and 2002, in the Gustafsson v. Sweden judgment (25 April 1996, § 45, Reports of Judgments and Decisions 1996‑II) and in the Wilson, National Union of Journalists and Others v. the United Kingdom judgment of 2 July 2002 (nos. 30668/96, 30671/96 and 30678/96, § 44, ECHR 2002‑V). In the present judgment, by contrast, the Court has found that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention” (see paragraph 154 of the judgment).
2. The Court has thus expressly departed from its case-law, taking into account “the perceptible evolution in such matters, in both international law and domestic legal systems” (see paragraph 153 of the judgment). In reality, the new and recent fact that may be regarded as indicating an evolution internationally appears to be only the proclamation (in 2000) of the European Union’s Charter of Fundamental Rights. The evolution of legislation in the various States (see paragraphs 52 and 151 of the judgment) is a more difficult basis on which to assess the time or period from which a significant change became perceptible. I have the feeling that the Court’s departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework (as was the case, for example, in its Stafford v. the United Kingdom judgment of 28 May 2002 ([GC], no. 46295/99, ECHR 2002‑IV)) or in the relevant social and cultural ethos (as, for example, in the Christine Goodwin v. the United Kingdom judgment of 11 July 2002 ([GC], no. 28957/95, ECHR 2002‑VI)). This departure is probably closer to the situation dealt with by the Court in the case of Pessino v. France (no. 40403/02, 10 October 2006) than to the domestic case-law in the S.W. v. the United Kingdom judgment of 22 November 1995 (Series A no. 335‑B). In any event, the evolution of public opinion which rendered foreseeable the solution adopted by the domestic courts in the S.W. v. the United Kingdom case was already evident by the time of the offence of which the applicant stood accused.
3. The Court, recognising that “it is in the interests of legal certainty, foreseeability and equality before the law that [it] should not depart, without good reason, from [its] precedents”, and being responsible for interpretation of the Convention (Article 32 of the Convention), has nevertheless proceeded with this departure, considering that “a failure by [it] to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement” (see paragraph 153 of the judgment). This is all perfectly consistent with the practice of the Court, which, while in principle following its own previous rulings, does from time to time, very cautiously, develop its case-law by a reversal of precedent (see Christine Goodwin, cited above, §§ 74 and 93; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007‑II; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 109, 121 and 125, ECHR 2005‑I).
4. All courts have to interpret the law in order to clarify it and, if need be, to keep pace with the changes in the society which they are serving (see, among many other authorities, Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260‑A, and Cantoni v. France, 15 November 1996, § 31, Reports 1996‑V). For the purposes of the Convention, the term “law” covers both enactments and the interpretation thereof by the courts (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176‑A), such that divergences in case-law create uncertainty and a lack of foreseeability that are capable of raising doubt as to the legality of an interference with a Convention right (see Driha v. Romania, no. 29556/02, § 32, 21 February 2008, and Păduraru v. Romania, no. 63252/00, § 98, ECHR 2005‑XII). Any judicial interpretation of the law is by nature retrospective, in the sense that it applies to a prior situation or conduct. However, in my opinion, the act of departing from precedent raises a particular problem, because the interaction between the new interpretation and the law, as previously contemplated, will give rise to a new “law” whose content is different to that of the previous “law”. The retrospectiveness of the new “law” is problematic with regard to the requirements of foreseeability and legal certainty. I would compare this to the problems raised by the retrospective effect of an Act interpreting a previous Act, justifying a certain resistance on the part of the Court. The requirements in terms of the quality of the law, and particularly that of the foreseeability of its application, entail a need for a similar approach to the nature of judicial interpretation to that obtaining in the situation of laws succeeding each other in time, for which transitional provisions are often made.
5. As regards the case-law of domestic courts, the Court has already shown that it is aware of the problem in cases where it has taken note of rulings affording new domestic remedies to applicants (see Di Sante v. Italy (dec.), no. 56079/00, 24 June 2004; Cocchiarella v. Italy [GC], no. 64886/01, § 44, ECHR 2006‑V; Giummarra and Others v. France (dec.), no. 61166/00, 12 June 2001; Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002‑VIII; Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; and Paulino Tomas v. Portugal (dec.), no. 58698/00, ECHR 2003‑VIII), while dealing with such situations as if they entailed the creation of a new law due to take effect (“enter into force”) after a certain period of time, in the manner of a vacatio legis. The same awareness is reflected in certain judgments of the Court of Justice of the European Union and of certain domestic courts, which, adopting the principle of prospective overrulings, or addressing the consequences of a mistake of law caused by existing case-law, do not apply (retrospectively and automatically) the new case-law to the case pending before it or to similar situations (see Les Revirements de Jurisprudence – Report presented to President Guy Canivet by the Working Party chaired by Nicolas Molfessis – Paris, Litec, 2004). In this connection, a particularly clear and pointed argument, in respect of Article 6 of the Convention, was used by the French Court of Cassation in a plenary judgment of 21 December 2006 (Dalloz, 2007, pp. 835 et seq., with a note by P. Morvan, Le Sacre du Revirement Prospectif sur l’Autel de l’Équitable). The opinion of Lord Nicholls of Birkenhead in the National Westminster Bank plc v. Spectrum Plus Limited and others and others judgment of the House of Lords of 30 June 2005 ( UKHL 41) is also worthy of note.
6. In its Marckx v. Belgium judgment of 13 June 1979 (§ 58, Series A no. 31), the Court, responding to the Government’s request for determination of the effects of its ruling on previous situations, and taking into account the slow evolution towards the equality of treatment at issue in that case, dispensed the Belgian State from reopening legal acts or situations that antedated the delivery of its judgment. The Court, out of a concern for legal certainty, thus showed that it was aware of the need to refrain from calling into question situations concerning individuals whose proceedings relating to distributions of estates had already been concluded. However, that was an exceptional case, which could probably also be explained by the significance of the consequences that could otherwise have affected a large number of individuals. The Court nevertheless applied its new case-law, finding that Belgium had breached the Convention in respect of the applicants. In the same vein, the Court held in its Aoulmi v. France judgment of 17 January 2006 (no. 50278/99, ECHR 2006‑I) that there had been a violation of Article 34 of the Convention, dismissing the respondent Government’s argument to the effect that the applicant’s expulsion had taken place prior to the adoption by the Court, in its Mamatkulov and Askarov judgment of 4 February 2005 (cited above), of its new case-law as to the binding nature of measures indicated under Rule 39 of the Rules of Court. The Court thus considered that Contracting States had already been required to fulfil their obligations arising from Article 34 of the Convention at the time of the expulsion in question (see Aoulmi, cited above, § 111). Rightly so, but in the meantime the “content” of the obligation had changed as a result of the Court’s new interpretation of Rule 39.
7. When it departs from precedent, the Court certainly changes the content of the Convention in relation to its own previous interpretation, given with the authority conferred on it by Article 32 of the Convention. If the new case-law extends the scope of a Convention provision and thus imposes a new obligation on States, a retrospective effect that is automatic and not subject to directions by the Court would, in my view, be difficult to reconcile with the requirements of foreseeability and legal certainty, which are essential pillars of the Convention system. Moreover, the application in each State, by domestic courts, of the Convention as interpreted by the Court, will then become difficult, if not impossible. I therefore find it necessary that provision be made for the period that precedes the departure from precedent.
8. In the light of the foregoing, I would have preferred it if the Court had stipulated the time from which the right in question “became” (see paragraph 154 of the judgment) one of the essential elements of the right set forth in Article 11. In my own opinion, it would seem legitimate to doubt that this could already have come about by 1995, when the Turkish Court of Cassation disposed of the case at domestic level. Moreover, I find it regrettable that the Court has once again allowed the “natural” retrospectiveness of judicial interpretation to impugn an approach that, at the material time, was (probably) not in breach of the Convention. I did, however, vote in favour of finding a violation on account of the annulment of the collective agreement at issue (operative paragraph 3), as I share the Court’s interpretation of Article 11. I must also take account of the Court’s practice concerning the retrospective effect of its departures from precedent, although I personally believe that this practice should itself be the subject of such a departure.
CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES BRATZA, CASADEVALL AND VILLIGER (Translation)
1. I voted without hesitation for finding a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.
2. In the following lines I wish to explain why I also voted with the majority in favour of finding a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the authority.
3. Paragraph 154 of the judgment reads as follows: “... the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any ‘lawful restrictions’ that may have to be imposed on ‘members of the administration of the State’ within the meaning of Article 11 § 2 – a category to which the applicants in the present case do not, however, belong.”
4. The emphasis is thus placed on the “right to bargain collectively with the employer”.
5. It would be erroneous to infer that, for those working in the public service, “bargaining” has only one possible outcome: the “collective agreement”. It should not be forgotten that, in many legal systems, the statutory situation of civil servants is an objective situation, governed by laws and/or regulations, from which no derogation can be made by means of individual agreements. The introduction of an unlimited contractual dimension through Article 11 of the Convention would have a drastic impact on civil-service law in many States. The status of civil servant is based on the unification, organisation and efficiency of the public service.
6. The following comments have been made by Nicolas Valticos with regard to Convention No. 151 of the International Labour Organisation (ILO) and the Labour Relations (Public Service) Recommendation, 1978 (R159): “335. A difficult issue in the area of trade-union rights, as more generally in the determination of employment conditions, is that of public officials, since they are employed to serve the State and the general interests of the nation, the State is not an employer like any other and, as depositary of the common interest, the State is not inclined, as an employer, to renounce its public-authority attributes, at least not systematically. This concept of relations between the State and its officials will vary, however, depending on the country. In some countries nowadays civil servants and other public officials – or most of them – tend to be treated as workers in the private sector, as regards, for example, collective bargaining and even the right to strike. In other countries, however, the traditional notions are still recognised. Another problem stems from the fact that the definition of civil servant varies in scope depending on the country, according to the extent of the public sector and to whether or not a distinction is made – and also to what degree – between civil servants as such (even distinguishing between sub-categories thereof) and public-sector employees in a broader sense ... ... 337. The recommendation (No. 159) which supplements the Convention ... leaves to national legislation, or to other appropriate means, the task of determining the various provisions (participation of public officials, procedure to be followed) for negotiation or other methods of determining terms and conditions of employment ...” (Nicolas Valticos, Droit International du Travail, Droit du Travail (under direction of G.H. Camerlynck), vol. 8, 2nd edn., Dalloz, 1983, pp. 264-66).
7. That being said, it is no longer in dispute – as is made clear by the judgment – that freedom of association exists in the public service. Similarly, trade union associations have become permanent partners in discussions on working conditions between State employees and public authorities. Such associations cannot be ignored by the State as employer, or more generally by public authorities.
8. Even though the right to bargain collectively can no longer be called into question as such (see paragraphs 42-44 and 49-52 of the judgment), certain exceptions or limits must nevertheless always be possible in the public service, provided that the role of staff representatives in the drafting of the applicable employment conditions or regulations remains guaranteed. For example, as indicated by the Court in paragraph 149 of the judgment: “According to the meaning attributed by the European Committee of Social Rights to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations.” Similarly, the following provision is made by Article 7 of ILO Convention No. 151, quoted at paragraph 44 of the judgment: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.” This provision thus authorises a certain flexibility in the choice of procedures for determining conditions of employment with the participation of civil servants (see also J. Llobera, “La Fonction Publique et la Liberté Syndicale dans les Normes Internationales du Travail”, Revue Trimestrielle des Droits de l’Homme, 1992, p. 336, for whom such flexibility would not even entail recourse to collective bargaining).
9. In short, the basic issue is to ascertain what is meant by “collective bargaining”. The authorising of public officials to make their voices heard certainly implies that they have a right to engage in social dialogue with their employer, but not necessarily the right to enter into collective agreements or that States have a corresponding obligation to enable the existence of such agreements. States must therefore be able to retain a certain freedom of choice in such matters.
10. In the present case, however, the right to bargain collectively at issue had been rendered totally meaningless by the obstacles placed in the way of the social dialogue. The annulment ex tunc of the collective agreement entered into following collective bargaining with the authority had therefore entailed a violation of Article 11 of the Convention.
105. Another European instrument, the European Union’s Charter of Fundamental Rights, has adopted an open approach to the right to organise, declaring, in its Article 12 § 1, among other things, that “everyone” has the right to form and to join trade unions for the protection of his or her interests (see paragraph 47 above). 150. As to the European Union’s Charter of Fundamental Rights, which is one of the most recent European instruments, it provides in Article 28 that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels.