Freedom of association

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Freedom of association refers to the right of employees and employers to join forces to protect and promote working and economic conditions. Core of this right - the right of association - is the ability to trade unions and employers' associations to form and to join them.

Working conditions are conditions that relate to the employment relationship itself, such as: B. wages , working hours , protection against dismissal , etc., economic conditions also have an economic and socio-political character, such as B. Measures to reduce or avoid unemployment .

Freedom of association is distinguished from positive freedom of association , i.e. the right to join trade unions and employers 'associations, and negative freedom of association , i.e. the right to stay away from trade unions and employers' associations.

In Germany, Switzerland, France and Italy, freedom of association is one of the constitutionally guaranteed fundamental rights . The European Convention on Human Rights (ECHR) expressly grants the right to form trade unions in Article 11 (1), as does the UN Covenant on Civil and Political Rights in Article 22 (1) and the International Covenant on Economic, Cultural and Social Rights in Art. 8. The negative freedom of association is also protected by the ECHR. At the EU level , freedom of association is protected by Article 12, Paragraph 1 and Article 28 of the EU Charter of Fundamental Rights .


The freedom of association anchored in Article 9 (3) of the Basic Law is a special case of the general fundamental right of freedom of association . As a double fundamental right, it protects individual and collective freedom of association. It also works directly between private individuals, mostly the contracting parties. This makes it the only fundamental right with direct third-party effects .

Term of coalition

In general, the term coalition is understood to mean an association - possibly also an association - of people or groups of people who intend to act on existing conditions or states through joint action. In labor law , this is primarily understood to mean associations of employees who work as a group, e.g. B. through simultaneous cessation of work, the strike , demands to change working conditions including wages can be represented and if necessary enforced. Employers can also form coalitions in the form of employers' associations.

Constitutional term

A coalition in the constitutional sense is any voluntary, private-law association with the aim of maintaining and promoting working conditions, which is independent of opponents and has the will to enforce claims under collective bargaining law .

Collective bargaining term

In order to be able to pay tariffs under collective bargaining law ( § 2 TVG ), a coalition must have the following characteristics in addition to the constitutional characteristics: Opponent is perceived and taken seriously. It must also be ready to negotiate on all working conditions and to secure appropriate collective agreements. Ultimately, the ability to pay tariffs requires a tariff policy legitimized by membership through democratic structures.

Civil service term

For civil servants , freedom of association is specifically regulated in the civil service laws. According to § 116 BBG and § 52 BeamtStG civil servants have the right to form trade unions or professional associations. They may not be disciplined or disadvantaged for work for their trade union or professional association.

The freedom of association for civil servants is limited, however, since they have no right to strike due to the traditional principles of the civil service .

Prisoners union

It is currently controversial in court whether prisoners also have the right to freedom of association. The Basic Law does not recognize any particular restrictions for this group of people. Accordingly, the OLG Hamm decided that prisoners may also organize themselves in a union, the KG Berlin rejected this request and argued with the traditional doctrine of the special relationship of violence and stated that prison labor could also be a "means of coercion to the punishment imposed by the prison sentence" although this purpose cannot be found legally.

Individual freedom of association

The individual freedom of association protects the individual in his or her freedom to found an association to safeguard working and economic conditions, to join or to leave it. Therefore, for example, the termination of an employee on the basis of his union membership is null and void, since such discrimination violates the employee's right to freedom of association, Article 9 (3) sentence 2 of the Basic Law. The positive freedom of association corresponds to the negative freedom of association , i.e. the right that both employees and employers may leave their coalitions or stay away from them. Collective agreements must not per se exclude unorganized workers from collective bargaining benefits. However, the exclusion of individual tariff services is permitted within certain limits.

Collective freedom of association

In addition to the individual freedom of association, Article 9 (3) of the Basic Law also includes the collective freedom of association (hence the double fundamental right), which protects the coalition as an association. This protects the coalition itself in terms of its existence ( guarantee of existence ), its organizational structure ( organizational autonomy ) and its activities ( guarantee of activities ), provided that these serve to promote working and economic conditions.

Guarantee of existence

The existence of the coalitions is protected from third parties through the guarantee of existence based on the constitutional purpose of the coalition (preservation and promotion of working conditions). Agreements and measures by third parties that interfere with the existence of the coalition are illegal. Such an illegal measure applies, for example, if the hiring of an applicant is made dependent on his resignation from a union. The stock is also protected from competing unions.

Operation guarantee

The protected employment guarantee includes the right to represent and pursue organized group interests vis-à-vis employers, their coalitions, the state and political parties in the entire sphere of working and economic conditions. The Basic Law neither prescribes how the opposing fundamental rights positions are to be delimited in detail, nor does the constitution require an optimization of the fighting conditions. The scope of protection of freedom of association is not limited to the traditionally recognized forms of industrial action d. H. Strike and Lockout. Rather, Article 9 (3) of the Basic Law leaves the coalitions themselves the choice of the means they consider appropriate to achieve their coalition-specific purposes. Activities that are constitutionally protected under Article 9 (3) of the Basic Law include:

  • Conclusion, amendment and termination of collective agreements and other agreements with employers and their coalitions within the framework of collective bargaining
  • Labor dispute
  • arbitration
  • Participation in legislation, administration, court proceedings, works and corporate constitution
  • Self-presentation and advertising before works and staff council elections

The activity guarantee extends to all coalition-specific behavior and includes in particular the collective bargaining autonomy, which is at the center of the coalitions' opportunities to pursue their purposes. The choice of the means with which the coalitions attempt to regulate the working conditions through collective agreements and which they consider appropriate for this purpose is basically left to them by Article 9 (3) of the Basic Law. Accordingly, the fundamental right as a coalition-based activity also protects industrial action that is based on the conclusion of collective agreements . In any case, they are covered by the freedom of association to the extent that they are necessary to ensure functioning collective bargaining autonomy . That includes the strike . As a means of industrial action, it is fundamentally guaranteed under constitutional law. The freedom to choose the means of industrial action guaranteed by Article 9 (3) of the Basic Law not only protects certain forms of strike. The scope of protection of Article 9 (3) GG is not limited from the outset to the area of ​​the indispensable. Rather, the protection of fundamental rights extends to all forms of behavior that are specific to the coalition.

Organizational autonomy

Organizational autonomy guarantees self-determination about the organization and internal order of the coalitions, the process of their internal decision-making and the conduct of business.


Article 9 (3) of the Basic Law is an unrestrictedly guaranteed fundamental right which can only be lawfully interfered with if it is necessary to protect other legal interests with constitutional status. In addition, the principle of proportionality also applies here.


Historically, freedom of association is one of the bitterly contested rights of workers to join forces in trade unions.

The documented history of the German right of association goes back to the 14th century . The associations of servants and journeymen - the so-called societies - were opposed to the guilds . The imperial legislation began in 1530 and led through various state laws to the imperial law of 1731. Until the French Revolution , these laws were essentially aimed at the prohibition of coalitions or their limitation. Even if, with the emergence of the labor movement and also on the part of left-wing liberalism, voices were repeatedly raised calling for freedom of association, the ban remained in place. It was confirmed in Prussia in 1854 and 1860 and was incorporated into the General Mining Act in 1865 . In 1869, freedom of association was granted for the first time in the trade regulations of the North German Confederation , whereupon the first legal trade unions emerged in Germany. Nonetheless, the freedom of association, which was enshrined in the Imperial Trade Code of 1872 after the establishment of the Reich , remained limited. Lujo Brentano (1844–1931) was quoted as saying: "The workers have the freedom of association, only if they make use of it they are punished."

In Germany, after Napoleon's victory in the French-occupied territories (see “ French times ”), the code pénal was adopted with the ban on coalitions. The Prussian trade regulations of 1845 also made coalition efforts a criminal offense (§§ 181–184). Saxony granted freedom of association from 1861, the North German Confederation from 1869 and the German Empire from 1872.

In the Weimar Constitution , freedom of association was regulated in Art. 159 WRV.

In the time of National Socialism there was no freedom of association. Trade unions and employers' associations were prohibited from transferring their assets to the German Labor Front . Freedom of association was also restricted in the socialist states. Employers' associations were banned in the GDR . Trade unions were nominally allowed, but were under the control of the SED . Attempts to form free trade unions led to conflicts with the regimes.


In Switzerland, freedom of association is guaranteed in Article 28 of the Federal Constitution of 1999: "Employees, employers and their organizations have the right to join forces to protect their interests, to form associations and to join or stay away" ( Paragraph 1).

To what extent the freedom of association in the old federal constitution of 1874, which did not explicitly mention the freedom of association , fell under the freedom of association , was controversial.


Just two years after the revolution and the break of the corporate order, the Le Chapelier law was passed in France on June 14, 1791 . It banned coalitions representing joint professional and commercial interests in general and in the Code pénal (Art. 414–416) employers and employees were punished with different penalties. With the law of May 25, 1864 ( loi Ollivier ), the ban on strikes was initially lifted, and it was not until the law of March 21, 1884 ( loi Waldeck-Rousseau ) that the délit de coalition was finally lifted .

The preamble to the French Constitution of 1946 explicitly guarantees the right to organize and to strike. Literally: “Everyone can defend their rights and interests through union activity and join a union of their choice. The right to strike is exercised within the framework of the laws that regulate it. "


The constitution of the Italian Republic of January 1, 1948 guarantees the right of association

  • Art. 39: "The association to form trade unions is free."

as well as the right to strike

  • Art. 40: "The right to strike is exercised within the framework of the law."

United Kingdom

The British Parliament banned all combinations ( Combinations ) of workers to improve their wages and working conditions with the Combinations Act of 1799 and another of 1800. The ban was lifted with the Combinations Repeal Acts of 1824 and 1825. However, the activities of the unions another fifty years until the enactment of the Trade Union Act of 1871 and the Conspiracy and Protection of Property Act of 1875, when illegal and criminal activities are prosecuted.

It was a British tradition for unions to negotiate closed shop contracts with companies, according to which company employees were or had to be or become union members ( closed shop ). This practice, incompatible with the principle of negative freedom of association, was abolished in the 1980s by legislation of the Thatcher government.

United States of America

The first strike in the United States triggered by a workers' coalition was likely the 1786 print shop stoppage in Philadelphia, where a minimum wage of $ 6 weekly was at stake. A coalition in the narrower sense presupposes that the union organizing the strike will continue to exist after the strike. This is likely to have been the case for the first time in the USA in 1794, when the Philadelphia shoemaker's journeymen united under the name Federal Society of Journeymen Cordswainers .

There seems to have been an informal and in any case secret coalition among the miners, mostly of Irish origin, who dealt with unpopular foremen in the depths of the mines, which then led to appropriate countermeasures by the mining companies and a tradition of violence on the part of the Employees and the employer justified.

In contrast to the "trade unions" in England, workers' associations in the USA referred to themselves as "labor unions". The employers, which were increasingly united in associations, fought the associations of workers mostly as a criminal conspiracy (conspiracy) and usually found support from the judiciary.

Two organizations survived the collapse of the American workers' coalitions during the Civil War and afterwards: One called itself the “Noble Order of the Knights of Labor”, the other was a small union, the International Cigar Maker's Union , whose president Samuel Gompers the American Federation of Labor (AFL) founded. Another direction of trade union development in the USA led under the initiative of John L. Lewis in 1932 through the union of automobile workers to the establishment of the Congress of Industrial Organizations (1935 to 1955). CIO and AFL merged in 1955 to form the trade union confederation AFL-CIO .

The Sherman Antitrust Act , enacted to combat cartels , has in practice significantly restricted the freedom of workers to form associations. Under the New Deal of American President Franklin Delano Roosevelt , the Wagner Act was passed, which restored freedom of association. The Taft Hartely Act finally resulted in extensive legislation on labor and industrial relations , in particular with regard to measures to avoid disputes through Collective Bargaining , a set of rules for the process of measures in disputes between employees and employers.

In the conflict between collective and individual regulations, individual regulations always have priority. The existing freedom of contract therefore also allows employees to forego independent employee representation.

Individual evidence

  1. Wolfgang Ritscher : Coalitions and the right of association in Germany up to the Reichsgewerbeordnung. Reprint. Keip Verlag, 1992, ISBN 3-8051-0111-2 .
  2. International Covenant on Economic, Social and Cultural Rights , version of March 13, 2015.
  3. ECHR , judgment of January 11, 2006, Az. 52562/99 and 52620/99, full text , "Sorensen and Rasmussen v. Denmark"
  4. BGH , judgment of August 21, 2012, Az. X ZR 138/11, full text , Rn. 20th
  5. ^ BAG , judgment of March 28, 2006, Az. 1 ABR 58/04, full text .
  6. OLG Hamm, decision of June 2, 2015, Az. III - 1 Vollz (Ws) 180/15, full text and decision of June 11, 2015, Az. III - 1 Vollz (Ws) 203/15, no full text available.
  7. KG Berlin, decision of June 29, 2015, Az. 2 Ws 132/15 Vollz, full text .
  8. ^ BAG, judgment of June 19, 2007, Az. 1 AZR 396/06, full text
  9. BAG, decision of September 19, 2006, Az. 1 ABR 2/06, full text .
  10. BAG, judgment of March 18, 2009, Az. 4 AZR 64/08, full text , Rn. 41, 49 f.
  11. BAG, judgment of March 18, 2009, Az. 4 AZR 64/08, full text .
  12. BVerfG , decision February 6, 2007, Az. 1 BvR 978/05, full text .
  13. Press release no. 35/2014 of April 9, 2014 on the decision of March 26, 2014 in proceedings 1 BvR 3185/09: Unsuccessful constitutional complaint against a union call for a “flash mob” in retail. In: Press Office of the Federal Constitutional Court. Press office of the Federal Constitutional Court, April 17, 2014, accessed on April 17, 2014 .
  14. a b BVerfG, judgment of July 4, 1995, Az. 1 BvF 2/86, u. a. BVerfGE 92, 365 - Short-time work allowance; BVerfG, decision of September 10, 2004, Az. 1 BvR 1191/03, full text .
  15. BVerfG, decision of February 17, 1981, Az. 2 BvR 384/78, BVerfGE 57, 220 , 246 - Bethel.
  16. ^ Hans-Ulrich Wehler : German history of society. Volume 3: From the “German Double Revolution” to the beginning of the First World War 1845 / 49–1914. CH Beck, Munich 1995, p. 352.
  17. ^ Hans-Ulrich Wehler: German history of society. Volume 3: From the “German Double Revolution” to the beginning of the First World War 1845 / 49–1914. CH Beck, Munich 1995, p. 160.
  18. ^ Hugo Heinemann : The social force of the coalition. In: Alfred Bozi, Hugo Heinemann (Hrsg.): Law, administration and politics in New Germany. Stuttgart 1916.
  19. Michael Kittner: Labor dispute. History - Law - Present. CH Beck, Munich 2005, ISBN 3-406-53580-1 , p. 155 ff.
  20. Art. 143 WRV.
  21. ^ Günter Endruweit, Eduard Gaugler, Wolfgang H. Staehle, Bernhard Wilpert (Eds.): Handbook of industrial relations. Germany, Austria, Switzerland. de Gruyter, Berlin et al. 1985, ISBN 3-11-009533-5 , p. 421 ff.
  22. ^ Dieter Gosewinkel, Johannes Masing (ed.): The constitution in Europe. 1789-1949. Scientific text edition including all changes and additions as well as documents from the English and American constitutional history. CH Beck, Munich 2006, ISBN 3-406-55169-6 , p. 360.
  23. full text of the preamble (translation)
  24. ^ Dieter Gosewinkel, Johannes Masing (ed.): The constitution in Europe. 1789-1949. Scientific text edition including all changes and additions as well as documents from the English and American constitutional history. CH Beck, Munich 2006, ISBN 3-406-55169-6 , p. 1388.
  25. ^ Long title: An Act to prevent Unlawful Combinations of Workmen. (Full text)
  26. ^ S. Perlman: A History of Trade Unionism in the United States. Kelly, New York 1950.
  27. ^ Robert H. Zieger, Gilbert J. Gall: American Workers, American Unions: The Twentieth Century. 3. Edition. 2002.
  28. ^ Philip S. Foner: History of the Labor Movement in the United States. Vol 1: From the Colonial Times to the Founding of the American Federation of Labor. Intl. Publishers, New York 1972, ISBN 0-7178-0089-X .
  29. ^ Richard C. Cortner: The Wagner Act Cases. 90, Knoxville 1964.
  30. Phillip Nicholson: Labor's Story in the United States. Temple University Press, 2004, ISBN 1-59213-239-1 .
  31. Wayne Buidens include: Collective Gaining: A Bargaining alternative. In: Phi Delta Kappan. 63, 1981, pp. 244-245.