Filip Dorssemont, The dramatic implications of sindicatul păstorul cel bun v. Romania for the German “Kirchliche Tendenzbetriebe” Would God mind if the shepherd and the sheep would go on strike? in:

Wolfgang Däubler, Reingard Zimmer (ed.)

Arbeitsvölkerrecht, page 188 - 200

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6,

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The dramatic implications of sindicatul păstorul cel bun v. Romania for the German “Kirchliche Tendenzbetriebe” Would God mind if the shepherd and the sheep would go on strike? Filip Dorssemont Introduction The title of this contribution dedicated to Klaus Loercher, a distinguished and activist connaisseur of international and European labour standards, is remiscent of a seminal article of Keith Ewing and John Hendy Q.C. In 2010, they published an impressive analysis on the “Dramatic Implications of Demir and Baykara” in the Industrial Law Journal.1 In Demir and Baykara the Court overruled its pre-existing case law related to the right of collective bargaining. This judicial “revolution” went hand in hand with a canon of intertextuality pledged by the Court in the following words: “The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.”2 They speculated about the implications of the Grand Chamber Judgment for the development of other means deemed essential for the defense of workers’ rights. The judgment inevitably raised the question whether both the canon of interpretation introduced in the judgment as well as the nexus between collective bargaining and strike would prompt the Strasbourg Court to revisit the question whether the right to collective action fell within the ambit of Article 11 ECHR and to what extent this extension would create a momentum to assess some notorious restrictions to the right to collective action. The authors examined some restrictions of the right to take collective action under UK law and they reflected upon how the ECHR could be used as a tool to overcome the restrictions developed by the CJEU in the infamous Viking and Laval cases. In 2009 Loercher wrote a contribution for I. 1 Ewing, K./ Hendy, J., The dramatic implications of Demir and Baykara?, Industrial Law Journal 2010, March Issue, p. 1-50. 2 ECtHR, 12 November 2008, Demir and Baykara v. Turkey, No. 34503/97 § 85. Arbeit und Recht focusing on the implications of Demir and Baykara as well as the subsequent Enerji Yapi Yol Sen on the prohibition under German law for civil servants to have recourse to strike. 3 On 31 January 2012 the ECHR ruled a judgment in SINDICATUL PĂSTORUL CEL BUN c. ROMANIA4. As opposed to Demir and Baykara, this case does not directly deal with the issue of collective bargaining as a means for trade unions to defend workers’ rights, but rather with the right to form and join a trade union as such. The Romanian judicature considered that such a right could not be granted neither to priests neither to employees under an employment contract working for the Romanian Orthodox Church. For this reason, the judicature refused to register a trade union which had been created among priests and employees of the bishopric of Olthenia and to grant it corporate personality. However, in Demir and Baykara, a similar clear cut prohibition for Turkish civil servants to form and join trade unions was at stake indirectly. The municipal authorities had challenged the validity of a collective agreement which they had previously concluded with a trade union of the civil service, since at that time under Turkish law civil servants did not have a right to form and join a trade union anyhow. Both cases illustrate to what extent the recognition of the right of an individual to form and join a trade union (the right to organize) can be intertwined with some “collective” rights to defend workers’ interests. For this reason, the issue of the right to form and join trade unions within the Romanian Church will inevitably have an impact on the issue of industrial relations within such an institution. It potentially has the impact to transform those relations from a unilateral model where harmony is seen as something pre-established which cannot be contested by means of collective actions towards a more dialectical approach of harmony as being the result of those actions. Such an approach presupposes that a Church for workers as opposed to the faithful is not necessarily a corpus mysticum. In this contribution, I will endeavor to present the Sindicatul Pastorul cel Bun case (§ 2). I will attempt to examine if and why this case might be relevant for the legal issues of industrial relations within Tendenzbetriebe, especially those related to Churches of a Christian denomination in Germany. It can perhaps give some new aspects to the discussion the two recent decisions of the Federal Labour Court5 have provoked. Two different conflicts are at the heart of Sindicatul Pastorul cel Bun. Two collective actors invoke a convention right which has both an indi- 3 Lörcher, K., Das Menschenrecht auf Kollektivverhandlung und Streik auch für Beambte”, AuR 2009, 229-242. 4 ECtHR, 31 January 2012, Sindicatul Pastorul cel Bun c. Romania, n° 2330/09. This contribution was submitted prior to the Grand Chamber Judgement of 4 July 2013 which has overruled the judgement of the Chamber and decided that there was no vidation of Article 11 ECHR. 5 BAG 20.11.2012, NZA 2013, 437 and 448. Implications of sindicatul păstorul cel bun v. Romania 189 vidual as well as a collective dimension. The Archbishop invokes the freedom of religion in relation to the Church’s autonomy, whereas “his” priests and employees invoke their right to form and join a trade union. Paradoxically, the collective dimension of the freedom of religion collides with the individual dimension of the right to organize (§ 4). This approach suggests a conflict between an individual and an institution. Insofar as the right to form and join trade unions is recognized, the creation of such a trade union might be able to generate a subsequent problem of an individual having to face divergent and potentially conflicting duties of loyalty (§ 5). Priests and employees are supposed to be obedient as members as well as “workers” of a religious Community, but they also need to be loyal trade union members. Sindicatul Pastorul cel Bun v Romania In the case Sindicatul Pastorul cel Bun c. Romania, a trade union organizing popes and workers of the Romanian Orthodox Church challenged the refusal to be registered by the Romanian judicature. The Romanian courts had refused to grant legal personality to a union which included priests and workers of the Orthodox Church of Romania in the province of Olthenia. After a first favourable judgment of the Tribunal, the Archdiocese of Craiova appealed invoking freedom of religion, recognized by the Constitution. It successfully argued that the freedom of religion would preclude the registration of the union, since the statutes of the Orthodox Church did not provide for any institutionalized role for any trade union. In addition, it argued that the priests taking responsibility for a parish should be qualified as individuals performing an executive function. Under Romanian law, the latter cannot join a union. The European Court of Human Rights ruled that the question of the acquisition of legal personality and the freedom of association are closely related. In Syndicat national de la Police belge, the Court had identified for the very time an essential means to defend workers’ interests, id est the right to be heard. The Court now suggests that the refusal to register a trade union is likely to impair this right. The Court first considers the question of whether Romania could validly invoke restrictions on trade union rights that are mentioned in Article 11 § 2 to the detriment of workers of the administration of the State. While insisting that such restrictions must meet a test of "legitimacy", the Court considers that the employment relationship of popes and workers of the Orthodox Church cannot be equated to that of civil servants within the administration of the State. The Court does not hesitate to qualify the employment relation as being contractual in nature, though the Archdiocese of Craiova had formally challenged that at least the priests were II. 190 Filip Dorssemont bound by an employment contract. For the Church, the relation is based on a vow rather than on a contract. Though the Church denies essential workers’ rights on the one hand, it also tends to relativize the degree of subordination and hierarchy to which priests are subjected. In my view, the absence of the effective enjoyment of human rights is a perfect illustration of a state of subordination. Another argument to deny that an employment relation existed between the Church and the priests, was related to the fact that the government directly paid the wages to the priests. It did not convince the Court either. In sum, the Court heralds an autonomous interpretation of the notion of union, which is characterized by a broad and flexible interpretation of the concept of worker. The Court’s rejection of the appreciation of the Romanian Courts is primarily based on the idea that the objective was not pertinent, rather than that the restriction was not proportionate to safeguard that objective. The reason given by the government, i.e. its desire to preserve the freedom of religion or the internal autonomy of the Romanian Church, is not primarily considered as excessive. It is more seen as irrelevant. The Court considers that the union in question was not at all hostile to the religion or the Church. The union was there to defend the interests of workers against the State and against the Church, though merely in its quality of an antagonist in employment matters. The Court considers that neither the union nor its members have ever showed to be disrespectful. It seems that freedom of association and expression does not preclude criticism in employment matters. The Court also poses a limitation on the alleged waiver of freedom of association resulting from an employment relation. Unlike German cases examined by the Court6, the Court finds that the employment contracts of employees of the Orthodox Church did not contain any clause referring to it explicitly. It seems to us that the Court therefore emphasizes that restrictions to human rights need to be sufficiently transparent. A simple reference to compliance with internal regulations of the Church within the contract does not seem to pass that test. The Court is also questioning the validity of clauses that are likely to affect the very substance of the freedom guaranteed by Article 11 of the European Convention on Human Rights. 6 Cf. ECtHR, 23 September 2010, Obst v. Germany, No 425/03; ECtHR, 23 September 2010, Schüth v. Germany, No 1620/03 and ECtHR, 3 February 2011, Siebenhaar v. Germany, n° 18136/02. Implications of sindicatul păstorul cel bun v. Romania 191 Dramatic implications for industrial relations within Tendenzbetriebe based upon religious convictions? Tendenzbetriebe based upon religious convictions The idea that the freedom of religion cannot preclude workers and in fact priests working for the Romanian orthodox Church to form and join a trade union inevitably raises a number of questions which did not yet come to forefront. In Syndicat national de la police belge, the ECtHR has ruled that the words “for the protection of his interests” are not redundant. Ever since the landmark case Syndicat national de la police belge, the ECtHR has for this reasons developed a set of means deemed essential for the protection of workers interests. The Court has subsequently recognized the right to be heard, the right to collective bargaining and the freedom of trade union expression to constitute such essential means. By referring in Enerji Yapi Yol Sen to the Freedom of Association Committee’s (ILO) qualification of the right to strike as a “corrolaire indissociable” of the freedom of association, the Court came close to declaring that the right to strike did constitute such an essential means as well. Though the Court did stick to its older terminology qualifying the right to strike as “just” an import means, it did decide that the right to strike fell within the ambit of Article 11. Indeed, it assessed whether restrictions could pass the test of Article 11 § 2. Hence, the recognition of the right to organize in ecclesiastical institutions has the potential to alter industrial relations within those institutions. In our view, the mere right to be heard will not alter the balance of power between church authorities and the people working in ecclesiastical institutions or organizations. The right to be heard as evidenced by the Court only relates to the “right of a trade union to seek to persuade an employer to hear what it has to say on behalf of its members”.7 As is evidenced by Syndicat national de la police belge, this right needs to be distinguished from the right to be informed and consulted on the (unilateral) determination of working conditions. Such a right to be heard, does not mean that the employer has to listen, let alone to substantiate the reasons for a refusal not to embrace the arguments raised by trade union officials. Furthermore, as far as the right to collective bargaining is concerned, the Court has stressed in cases predating Demir and Baykara that the freedom of association does not entail an access to a bargaining table, let alone a right to force an employer to sign a collective agreement.8 The recognition of the right to collective bargaining as an essential means III. 1. 7 ECtHR, 2 July, 2002, Wilson, National Union of Journalists and others v. United Kingdom, No15573/89, § 44. 8 See on this issue: Dorssemont, F., The right to form and join trade unions for the protection of his interests under Article 11 ECHR, European Labour Law Journal, 2010/3, 218-223. 192 Filip Dorssemont will not necessarily force the Court to adopt a different approach. In fact, the previous teaching of the ECHR is compatible with an approach of the right to collective bargaining as a freedom. Thus, the FAC has stressed the voluntary character of the process. In sum, the quintessential question remains whether employees in Kirchliche Tendenzbetriebe have a right to engage in strikes and collective action. In my view, this question is quintessential, insofar as an effective recourse to collective action will indeed force an employer to listen more carefully and will allow a trade union to impose its presence at the bargaining table or at a table where trade unions are informed and consulted on the determination of working conditions. In my view, a right to strike will fall within the ambit of Article 11 but the question might arise how the Court will deal with restrictions of that right, based upon an alleged conflict with the “freedom of religion”. Will the Court allow a margin of appreciation which exceeds the narrow margin it has afforded to Romania in Sindicatul Pastorul Cel Bun? Under German law, the restrictions for employees of so called Tendenzbetriebe based upon religious convictions to the right to participate in strike action are notorious.9 Workers in Tendenzbetriebe based on a religious ethos are often confronted with a genuine prohibition on the right to strike, which is reminiscent of the Streikverbot that affects civil servants in Germany. This general prohibition to have recourse to strike is based upon a provision of the Weimar Constitution to which the German Basic Law refers. Article 137 § 3 of the Weimar Constitution enshrined an idea of autonomy in internal matters. It states «Jede Religionsgesellschaft ordnet und verwaltet ihre Angelegenheiten selbständig innerhalb der Schranken des für alle geltenden Gesetzes. Sie verleiht ihre Ämter ohne Mitwirkung des Staates oder der bürgerlichen Gemeinde». Article 140 GG incorporates this provision into the German Basic Law. Thus, it elaborates even further the collective dimension of the freedom of religion which is enshrined in Article 4 GG. Though this provision is not at all very explicit, let alone on the right to strike, a majority in German legal doctrine holds the view that these provisions are indeed sufficient to justify a „dialectical“ model of industrial relations which is deprived of genuine collective bargaining and henceforth of collective action. Working conditions are set in a unilateral manner and the degree of worker involvement does not reach the level of the Betriebsverfassunsgsgesetz which is not applicable. Churches are allowed to opt for a more dialectical model, but this is not an obligation. 9 For a survey: Hensche, D. in: Däubler (ed.), Arbeitskampfrecht, 2011, Baden-Baden, p. 442-463; Kissel, O., Arbeitskampfrecht, München, 2002, 311-316; Otto, H., Arbeitskampfund Schlichtungsrecht, München, 2006, 176-183. For the recent decisions which put new accents see supra I. Implications of sindicatul păstorul cel bun v. Romania 193 It is not entirely undisputed whether the text of Article 137 Weimar Constitution allows, let alone warrants such a harmonious model. It has been argued that the text does not allow the Churches to derogate from universal legislative standards for the sake of upholding “internal autonomy”.10 There is no reason to understand how “on earth” (or even in heaven) internal autonomy in internal matters could justify a derogation from a universal constitutional standard, such as the freedom of association of Article 9 (3) GG. Furthermore, it has been argued that the contractual relations that the Church concludes with employees, eg. in undertakings that it has created, cannot be seen as properly internal. They could be said to exist outside or better with the Church. Even if the Church might be more favorable to recruit among its members, the contractual employment relation and the affiliation to a Church still need to be distinguished. In my view, the question whether this harmonious model of industrial relations which seems to be based on the clear cut denial of a conflict of interests between employers and workers all active in the Vineyard of the Lord can be reconciled with Article 11 ECtHR is legitimate. In my view, the question whether the Church can legitimately deprive its employees from a right to strike also will need to be assessed in the light of Article 11 ECthR, since the central message of Sindicatul Cel Bun seems to be that workers and even employees just cannot be excluded linea recta from the ambit of Article 11 ECHR. In my view, there are three solid reasons to challenge the dominant idea that priests and even workers can legitimately be deprived of a right to collective action to defend their “professional” interests. They will be dealt with underneath. Prohibitions and restrictions First, the Court has shown to be critical towards a general prohibition of any means of genuine collective action to defend workers’ interests. In my view, the extremely light procedures or worker’ involvement inside the religious institutions and Kirchliche Tendenzbetriebe combined with a general prohibition to have recourse to strike, are just not sufficient. At its best, they tend to boil down to the recognition of a right to be heard and a right of trade union expression, whereas collective bargaining as well as collective action are excluded. In a German approach, collective bargaining and collective action might be intertwined, due to the “dogma” of the Tarifvertragsbezogenheit. In a typically German approach, the exclusion of a right to strike is consistent with the exclusion of the right to collective bargaining. As a non German (which I am), this line of reasoning seems to us as being as 2. 10 For this critique: Nitsche, M., Streik in Sonderbereichen, in Däubler (ed.), Arbeitskampfrecht, § 18, nr. 60 ff. 194 Filip Dorssemont idiosyncratic as the approach of the Roman Catholic Church towards sexual relations between persons of the same sex might seem to a non-Catholic (which I am not). Since marriage is defined as an institution only open to people of different sex, and since sexual relations are only allowed, indeed obligatory within the framework of a marriage, sexual relations between people of the same sex should be condemned. As far as the right to strike within ecclesiastical institutions, there is a similar rosary which is being prayed. Since the right to strike can only be exercised in the context of collective bargaining, and since workers in Kirchlichen Tendenzbetrieben based upon religious convictions have no right to collective bargaining, any strike in those undertakings should be considered as illegal. Judged from the perspective of the European Court on Human Rights, the link between the right to strike and the freedom of association is much more direct. It is not based at all upon a nexus with “collective bargaining”. The Court has derived the right to collective action from the right to form and join trade unions. Restrictions, let alone prohibitions need to pass the test of Article 11 § 2. In sum, the mere fact that a State would legitimately allow a Church to preclude collective bargaining, does not imply that it can also deprive its workers of a right to have recourse to collective action. In sum, a system which deprives (hence not just restricts) workers of essential means to defend workers’ interests might constitute an excessive restriction of the right to form and join trade unions. Credibility Secondly, in my view, there is definitively a credibility issue at stake. In the Germans cases referred to, the Court has been very sensitive to the issue of credibility. It has accepted that a State could allow Tendenzbetrieben based upon religious convictions to restrict convention rights of workers pendente contractu insofar as this is necessary to uphold the credibility of the Church. In this respect, one might also consider the confidence the “public” legitimately can expect from those entities providing services based upon a religious ethos.11 In my view, credibility ceases to be credible, if it only works one way. In sum, workers of a Church can invoke the credibility of the Church in order to challenge restrictions to convention rights imposed by the Church. As far as the Holy Roman Catholic Church is concerned, it seems to me that it is in no position to prevent its workers to have recourse to strike. Indeed, an evolution has taken place in the social teaching of the Catholic Church, which in our view is more or less consistent with the evolution of labour 3. 11 See in this respect : ECtHR, 15 May 2012, F. Martinez v. Spain, n° 56030/07. Implications of sindicatul păstorul cel bun v. Romania 195 law. The Church has anticipated on the recognition of the right to strike, but it has come to terms with present day realities in this particular field. Laborem exercens clearly construes the recognition of the strike as having legal implications. Thus, it rejects sanctions being inflicted against workers as a result of the participation to a (legitimate) strike.12 John Paul II puts forward other restrictions.13 There is a clear cut condemnation of the political strike. Recourse to strike action is construed to be legitimate insofar as is not being abused. Unfortunately, the encyclical does not define both concepts. In the Compendium14, the concept of “abus” is being explained by submitting the exercise of the right to strike to the principle of proportionality. Last but not least, Laborem exercens explicitly refers to the issue of essential services which need to be safeguarded. It states: “when essential community services are in question, they must in every case be ensured, if necessary by means of appropriate legislation. Abuse of the strike weapon can lead to the paralysis of the whole of socioeconomic life, and this is contrary to the requirements of the common good of society, which also corresponds to the properly understood nature of work itself.” 15 In my view, a clear cut prohibition of the recourse to strike action is contrary to the recognition in the papal encyclicals of a right to strike. None of the restrictions which are being mentioned, would allow to justify a prohibition for church employees to have recourse to strike. Hence, there seems to be a serious credibility issue at stake. By allowing the Church to restrict the right to strike, the judicature would become an accomplice of such a lack of credibility. Whether these observations are valid for other denominations, requires a research of the social teaching and the social thought within those traditions. This goes beyond the scope of the present contribution. Church and Religion In my view, the Court has given a crucial message in Sindicatul Pastorul Cel Bun. It has stated that “a relationship based on an employment contract cannot be “clericalised” to the point of being exempted from all rules of civil law”. It was for this reason that the Court concluded that members of the clergy, and a fortiori lay employees of the Church, cannot be excluded from the scope of Article 11 of the Convention. In my view, it is extremely difficult to imagine how an alleged pro- 4. 12 Laborem exercens, nr. 20. 13 Laborem exercens, nr. 20. 14 Compendium nr. 304. 15 Laborem exercens, nr. 20. 196 Filip Dorssemont hibition of the strike could be “clericalised”. It goes without saying that a shepherd will continue to be a shepherd 24 hours a day, but not all the material work a priest is performing is related e.g. to the administration of sacraments. As far as workers are concerned, the observation is even more obvious. In sum, the preservation of the internal autonomy of a Church might constitute a legitimate aim to restrict some convention rights, but the argument needs to be pertinent. The Court seems to suggest that there are some issues of autonomy which do strike the heart of religious convictions. Other issues relate to the Church as an organization, but they are not religious in nature. It is for this reason that the Court explicitly considers that “the applicant union’s constitution did not contain any passages that were critical of the faith or of the Church. On the contrary, it specified that the union intended to observe and apply in full the provisions of civil law and ecclesiastical rules, including the Statute and canons of the Church. Nor does it appear from the material submitted by the parties that the union’s leaders or its members have made any disrespectful comments about the Orthodox faith or the Church”. In sum, the Court seems to draw a line between issues which are related to the defense of workers’ rights and issues which affect the hard core of a religion or the very idea that a given religion cannot be dissociated from an organized community, such as a Church. In Sindicatul Pastorul cel Bun, the Court seems to hold the view that it is up to the Court to delimit which ecclesiastical matters have a genuine religious dimension, hence falling within the ambit of the freedom of religion and which matters fall outside the freedom of religion. If matters fall outside, no genuine balancing operation in my view has to take place. In the only dissenting opinion, this lack of a genuine balancing operation by the ECtHR was in fact criticized. The dissenting judges argued that “the creation (of the trade union) would challenge the traditional hierarchical structure of the Church and the manner in which decisions were taken within it.” A crucial element in this assessment was the fact that the Constitution of the trade union “naturally talked about strikes”. In a subsequent judgment ruled by the very same third section, the ECtHR had to dwell on the decision of a Spanish bishop not to prolong the authorization of Mr. Fernandez Martinez to teach catholic religion at a State school.16 Though the priest concerned had been granted permission by the Vatican at his request to be dispensed from his vow of celibacy (the Vatican had accepted his request to terminate his priesthood and become a lay man), he had been asked to avoid any scandal. Mr. Martinez had long been married in the meantime. The marriage had been “blessed” by the birth of five children. Instead of adopting a low profile, Martinez became a very visible campaigner in order to make the obligation to respect a vow of celibacy optional. The bishop was not amused. Unfortunately, Mr. Martinez primarily built 16 ECtHR, 15 May 2012, F. Martinez v. Spain, n° 56030/07. Implications of sindicatul păstorul cel bun v. Romania 197 his case on the right to privacy. It might be regretted that he did not attack the decision not to prolong his contract and the subsequent lack of protection by the Spanish courts in challenging this decision, on the basis of the freedom of association. Indeed, the former priest had been active in a movement. The Court decided that the case necessitated a balancing of two convention rights: the right to privacy (and to some extent the freedom of expression) and the collective dimension of the freedom of religion. It is worthwhile to consider that the Court stated that the freedom of religion precludes the State to express any judgment on the legitimacy of religious convictions. It considered that the Church authorities had to be able to assess the identity of a person to whom could be given a profession which was essentially religious in nature, such as the teaching of a religion and that the religious and moral criteria to be applied in such an assessment had to be defined exclusively by the church authorities. It is yet unclear, to what extent this judgment pronounced by the very same section could be regarded as provoking a shift on the identity of the institution which will delimit issues which are “religious” in nature and which affect the essence of the freedom of religion and those which fall outside. In my view, the Martinez judgment which has been ruled in the immediate aftermath should not necessarily be seen as indicating that it is up to Church authorities to define what constitutes a religious conviction or a church matter affecting the very heart of the freedom of religion. In my view, the issue is extremely delicate. The question is whether internal autonomy granted to the Church allows the latter to define religious convictions and issues in an autonomous way. At first sight, there is some similarity with the issue of trade union autonomy, which at least seems to suggest that judges should be very reluctant while substituting their assessment of what constitutes an appropriate defense of workers interests for that made by trade unions. In fact, such a judicial attitude would strike at the very heart of trade union autonomy. However, in my view, allowing an excessive leeway to Churches to define what constitutes a religious issue and what constitutes a more contingent or administrative issue is problematic, insofar as freedom of religion is being used to restrict convention rights. Judged otherwise, the Court would indeed afford Churches a margin of appreciation to restrict convention rights which is not even afforded to States. This is simply not acceptable. Hence, there is latitude for the Grand Chamber17 in my view to state that the obligation to respect a “vow” of chastity (urging a priest to respect celibacy) does not strike at the heart of the freedom of religion and cannot be clericalised, in order to justify a restriction to the right to privacy. I am not suggesting that the Court should proceed in this manner, but that it can legitimately proceed in this way. The Martinez case is essentially 17 There is a “renvoie” pending against this judgment before the Grand Chamber. 198 Filip Dorssemont about a very fundamental question: to what extent can associations invoke convention rights to justify a way of functioning which restricts other convention rights in a manner which is not granted to a State. In other words, in so far as the freedom of association implies a relation between two legal orders (the State and the association), to what extent can a State recognize an infra-national legal order which is not consistent with some of its basic democratic values, such as the respect of human rights? Can a State which is supposed to uphold these values in relation to its citizens, hide behind the freedom of religion in order to turn a blind eye towards citizens who fall victim to the violation of convention rights by non-State actors in the very exercise of the “private autonomy” of those actors? The Court of Justice of the European Union has considered that some economic freedoms, deemed to be “fundamental” have a horizontal effect in relation between citizens and non- State actors which would unduly restrict those freedoms.18 These actors have in vain invoked their autonomy (as part of their right to organize) to be immunized. The question arises whether genuine fundamental rights are worthy of a similar degree of protection? Conflicts between duties of loyalty Insofar as employees in a Church or an undertaking or institution based upon a religious conviction will be allowed to form and join a trade union, a conflict might arise between three conflicting obligations. As a member of the Church, the employee is obliged to be loyal to the ethos of his community. In my view, it will be up to the judicature of a State to determine whether the bounds between a citizen and a Church can be construed as contractual or whether they are deprived of an animus contrahendae obligationis. However, insofar as an employment contract will be signed between a citizen (whether a member of a denomination or not) a contractual obligation emerges which has been described by the Court as a duty of loyalty, discretion and reserve. Insofar as a worker affiliates to a trade union, it is likely that according to the trade unions constitution, this will urge him or her to co-operate in a loyal way in promoting and defending workers’ rights. The question will arise how potential conflicts between contracts need to be solved. The rules which have been designed to deal with conflicting norms emanating within one and the same legal order are in my view not useful. In fact, it could be argued that there is a conflict between two legal orders (e.g. the undertaking/church and the trade union), which might amount to a litigation before a State Court. IV. 18 I obviously refer to the infamous cases Viking and Laval. Implications of sindicatul păstorul cel bun v. Romania 199 A judgment of the Bundesarbeitsgericht of 17 February 199819 sheds some light on the question whether the affiliation to a trade union by a member of a Kirchlicher Tendenzbetrieb necessarily raises a conflict between the obligations stemming from the membership of such a trade union and the obligations stemming from the employment contract. The facts of this to some extent hilarious case relate to employees working for the DGB who had formed a trade union to defend the interests of the workers. The BAG was not amused and considered that this initiative was contrary to the obligations stemming from the membership. The DGB did not argue for obvious reasons that the creation of a trade union was contrary to the obligations springing out of the employment contract. The BAG in my view found an appropriate and clever way to solve this conflict. It stated that the DGB was wrong in considering that the establishment of a trade union constitutes a violation of a members’ duty of loyalty. It argued that the employees did not want to defend their interests against the DGB in its capacity as trade union, but rather in its capacity as employer. Applied to the facts of the Sindicatul Pastorul cel bun case, one might adopt a similar conclusion. The creation of a trade union should not be seen as a lack of loyalty to the Church as a Church. This is yet another reason to argue that it does not even raise an issue of freedom of religion. The Court in § 73 explicitly considers that the trade union did not criticize the faith or the Church (as Church). One could have added that any criticism only related to the Church as employer. For obvious reason, the workers might have decided to exercise the freedom of association and of religion in order to criticize the Church as Church or to attack the dogmatic content of the Orthodox faith. The question whether such an organization could be construed as a trade union is however legitimate. It would not constitute an association for the defense of workers’ rights. In fact, the Romanian authorities could have refused the registration as a trade union in such a scenario without violating the freedom of association.20 Last but not least, the creation of such an association based upon religious convictions would have raised an issue of contractual liability of a worker for not upholding a duty of loyalty, discretion and reserve. The latter seems true irrespective of the fact whether sharing these religious convictions was indeed an essential professional requirement or not. 19 BAG, 17 February 1998, Neue Zeitschrift für Arbeitsrecht, 1998, 754. 20 ECtHR, 11 January 2011, Hayvan Yetistiricileri Sendikasi v. Turkey, n° 27798/08. 200 Filip Dorssemont

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Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.