''Demir and Baykara v Turkey'' ECHR 1345
is a landmark European Court of Human Rights">008
ECHR 1345
is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.

Facts

Mr Vemal Demir was a member, and Mrs Vicdan Baykara was the president, of the Turkish trade union for civil servants, Tüm Bel Sen. The union signed a two-year collective agreement in 1993, but the employer, the

Gaziantep Gaziantep, historically Aintab and still informally called Antep, is a major city in south-central Turkey. It is the capital of the Gaziantep Province, in the westernmost part of Turkey's Southeastern Anatolia Region and partially in the Medi ...

Municipal Council did not comply with its provisions. Demir and Baykara brought proceedings in the District Court, and won their claim. However, on appeal the Court of Cassation quashed the decision. This Court held there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood". The matter was then remitted to the District Court, which in defiance restated its view that Demir and Baykara did have a right to collective agreements, because this accorded with

International Labour Organization The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is one of the firs ...

Conventions ratified by Turkey. But again, the Court of Cassation overturned the District Court's decision. Furthermore, a separate claim in the Audit Court had been brought, which found that civil servants had no authority to engage in the collective agreement, and so the civil servants had to get the union to repay extra benefits it had got under the "defunct" collective agreement. After these domestic avenues were exhausted, in 1996 the union made an application to the European Court of Human Rights, alleging breach of freedom of association under article 11 ECHR and protection against discrimination under article 14 ECHR. After some time, in 2006, the case was heard by seven judges of the second section. It was held that article 11 had been violated, and there was no need to examine article 14. The Turkish Government then requested that the matter be referred to the Grand Chamber.

Judgment

The Grand Chamber of the European Court of Human Rights held unanimously that there had been a disproportionate and unjustified interference with the right to freedom of association. The Grand Chamber then turned to whether the Court of Cassation's annulment of the collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years was lawful, based on its interference with article 11 ECHR.

Significance

''Demir and Baykara v Turkey'' has widely been seen as a landmark case in the international development of freedom of association. Its significance lies in confirming that there is an inherent right to collective bargaining protected by article 11 ECHR, within the right to freedom of association. Only interference that is strictly necessary in a democratic society can be justified. A particular point of interest is its apparent tension with decisions of the

European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...

of the

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...

in ''

The Rosella ''International Transport Workers' Federation v Viking Line ABP'' (2007C-438/05is an EU law case of the European Court of Justice, in which it was held that there is a positive right to strike, but the exercise of that right could infringe a bu ...

'' and ''Laval'', which held that there is a qualified right to strike, but one which can only be exercised when it does not disproportionately affect the EU business right to freedom of establishment or providing services. It is highly open to question that these two cases, which preceded the judgment in ''Demir'' could be reconciled, given that Convention jurisprudence places the emphasis on justifying restrictions on the human right to free association, and would seem to favour greater attention to the need to collectively bargain. This had led to predictions that there could be a "showdown" between the Strasbourg and Luxembourg courts. Ewing and Hendy write, KD Ewing and J Hendy QC, 'The Dramatic Implications of Demir and Baykara' (2010) 39(1)

Industrial Law Journal The ''Industrial Law Journal'' is a legal journal which publishes articles in the field of labour and employment law, published quarterly by the Industrial Law Society in the United Kingdom, and founded in 1971. The journal publishes articles o ...

2, 42 The judgement also elaborated on the living instrument doctrine, stating:

Notes

References

* KD Ewing and J Hendy QC, 'The Dramatic Implications of ''Demir and Baykara (2010) 39(1)

External links

Eurofound.europa.eu summary of the case
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