Trade unions should shape working life in a meaningful way through collective agreements ensuring good working relations. In order to be eligible for collective bargaining, they must have a minimum bargaining unit vis-à-vis the workplace, says the German Federal Constitutional Court.

In Germany, the labour courts decide whether associations are eligible for collective bargaining and can therefore be parties to a collective agreement. Not only companies where the workforce is seeking the collective bargaining, but also competing associations may question the classification of an association as a trade union and seek to have their bargaining capacity denied. In the present case, following such request, the Higher Labour Court had classified an association of employees in the private insurance sector as not eligible for collective bargaining. The association then filed a constitutional complaint arguing a violation of its fundamental right to freedom of association.

The Federal Constitutional Court rejected the complaint (Order of 13.09.2019, Ref. 1 BvR 1/16) holding that it is not a violation of the right of freedom of association if collective bargaining autonomy is granted only to those associations that have adequate organizational unity and assertiveness and are able to fulfill their tasks independently of the goodwill of employers and other employee groups. The number of employees represented by the association determines its ability to negotiate and its organizational efficiency. It also provides evidence as to whether an association can build up sufficient pressure to win and conclude collective agreements. The denial of the collective bargaining capacity to splinter associations without sufficient membership does not conflict with the fundamental right to freedom of association.

In the present case, the Higher Court could not establish with certainty that the union was sufficiently powerful. Nevertheless, the court’s assumption that the union’s influence is not guaranteed by a membership of 0.05% of the workforce, taking into account the composition of its members, seems plausible.