October 7, 2021



In 2008, the European Court of Human Rights overturned earlier jurisprudence on the right to collective bargaining in its landmark decision in Demir and Baykara -v- Turkey. This essay discusses why the ECHR was right when it held that the freedom of association as protected under Article 11 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter “the Convention”), gives workers the inherent right to engage in collective bargaining and take collective action-as the right to collective bargaining is ‘an essential element’ of the right to freedom of association. 


The Applicants were a member and the president of an Istanbul-based trade union of civil servants called Tüm Bel Sen. The said union was formed in 1990 to represent civil servants in Turkey. Although, Turkish law at the time barred trade unionism for workers in civil service, the union negotiated a collective agreement with their employer, a local authority, the, that covered working conditions, such as salaries, allowances and welfare services. However, Gaziantep Municipal Council broke the terms of the agreement, and the applicants instituted a suit at the District Court. The Court ruled in favor of the union but an appeal to the Court of Cassation overturned the district court’s decision. It held that despite that civil servants had the right to join trade unions, Tüm Bel Sen had no right to enter into a collective agreement or to take collective action, because of the absence of a legislation permitting the same. 

The Court of Cassation ordered that the matter be re-heard by the Gaziantep District Court, but the latter stood its ground, and concluding that although there was no express statutory that recognizes the right for civil service trade unions to enter into collective agreements Turkey had ratified international treaties like the International Labour Organization (ILO) and the Convention which provided for such a right. This decision was overturned when the local authority appealed to the Court of Cassation, and a separate court (the Audit Court) ordered that the union refund the compensation the union had secured under the ‘defunct’ agreement.  When the proceedings came to an end, the union filed an application to the European Court of Human Rights (ECtHR) claiming a violation of its rights to freedom of association enshrined in the Convention had been violated. 


The Court concluded that the court of cassation and audit court did not separate the legal personality of the union from its members and thus violated the provisions of Article 11 of the Convention by voiding the collective agreement between that trade union and they also violated the right of the applicants, as municipal civil servants, to form a trade union. 

Not only did the Court embrace collective bargaining as an inherent right protected as part of the freedom of association pursuant to Article 11, but it also introduced the ‘essential right’ of workers to take collective action. 


The principle of collective bargaining is rooted in the argument that workers must have an autonomous voice over what they’re paid, the benefits they receive and their working conditions that promote dignity, equality, and democracy; and that a group of employees has more bargaining power to negotiate with their employer than doing it individually. 

This comment will argue that collective bargaining is a fundamental human right and a democratic process, promotes a fair performance rating system; assures job flexibility and career advancement opportunities; and puts in place mechanisms to hold employers accountable.

    1. Evolution in case law

Prior to the landmark decision in Demir and Baykara, the ECtHR had unsatisfactorily addressed the issue of collective bargaining. In the Swedish case Engine Drivers’ Union v Sweden and the Belgian case National Union of Belgian Police v Belgium, the court in interpreting Article 11 obligated a duty on member states to establish systems that enable trade unions to represent their members. It did not lay down how this obligation was to be achieved. However, in the Demir case, the court took a dramatic turn in evolving the case law surrounding the freedom of association. First, it repudiated its earlier decisions on the question of trade union rights and recognized collective bargaining as an essential right protected by Article 11, and secondly, in doing so reasoned that the right to take collective action should apply with equal force to other forms of union measures.

Article 11 of the Convention provides that Member States have a duty to safeguard the occupational interests of workers by allowing trade union action. However, sub-article 1 gives Member States a free choice to determine how to achieve this obligation.

In interpreting sub article 1, the Court reasoned that trade union members have a right to collective bargaining, and one of the ways in which the state of Turkey should have protected the members, was to allow the trade union heard. It also reasoned that while there were other means to protect the interest of union members, concluding of collective agreements is one of them. Therefore, the state of Turkey breached Article 11(1) by failing to provide a specific mechanism for unions to be heard in order to protect their members’ interests. 

The Court also opined that Article 11 (1) did not given Member States the choice to refuse to accept the obligations relating to the right to organize and the right to bargain or the right to strike, because if this was the case, the effect of the Convention would be that rights were optional, which is not the intention of the drafters.

A significant impact from the Court’s departure from its previous decisions is that while it is important for courts to ensure the legal certainty, foreseeability and equality of the law and an obligation for courts not to depart, without good reason, from previous precedents; the Court demonstrated that failure by a court to maintain a dynamic and evolutive approach impedes reform or improvement, particularly in the area of fundamental human rights and freedoms. 

  1. Method of Interpretation

It is well settled in public international law that treaties must be interpreted in good faith.  This is because, a treaty represents the consent of a State to be bound and its intention to enter into legal relations with other States or tribunal body. The importance of good faith in treaty interpretation cannot be overstated likewise with respect to evolutionary interpretation. 

Articles 31 to 33 emphasize on the fundamental rule of interpretation that must be applied in all treaties- the rule of interpretation in good faith of its object and purpose. This has been the position held by tribunals such as The Permanent Court of International Justice in its advisory opinion in the case of Free Zones of Upper Savoy and the District of Gex. It held a state is not bound to any obligations ensuing from a treaty instrument without the state’s consent.

It reiterated its position in the case of Daimler v Argentina and ruled that all classes of international treaties—whether bilateral, plurilateral, or multilateral—are essentially expressions of the contracting states’ intention to enter into legal relations with each other and consent to be bound to particular legal commitments

However, the principle of consent plagues international institutions with too many expectations and too little power. For instance, the International Court of Justice has been criticized as beig ineffective player in achieving international peace and security, mainly because it has a flawed jurisdictional architecture, which relies entirely on consent. 

This has led to serious non-compliance issues eventually risking the violation of human rights by non-compliant states. Such was the case of poor subsequent compliance since the landmark case of Nicaragua v. US

Over time, tribunals have evolved to exercising compulsory jurisdiction such as the ICJ so as to remain a vital instrument in resolving inter-state disputes and a force for world public order. However, they are still bound to interpret treaties aiming for the intention of the parties or the consent of the states to be bound. 

Despite the questions of interpretation of treaty instruments being notoriously difficult, it is necessary to note that evolutionary interpretation of treaties is possible. And it is being encouraged like in the instant case. ‘Evolutionary interpretation’ has been defined as the instances in which an international court or Tribunal holds that a treaty term is capable of evolving, that it is not fixed once and for all, and makes room for allowance and developments while interpreting it.

In the instant case, the ECtHR in its manner of interpreting the ILO and the ESC provisions concluded that, intention does not apply to one state only but the common intention of all state parties. That is, it does not refer to the intention of one party that is unshared by others but a common goal or diverse intentions of state parties that form a common objective or intention. 

A similar approach of interpretation was taken by the ILC in its work on the law of treaties. It reasoned that the function of a treaty instrument cannot rely on a singular identifiable original will of a state. It is simply to be used as evidence to be weighed against any other relevant evidence of the intentions of the parties, and its cogency depends on the extent of how the member states have commonly understood the meaning attached to the terms of the treaty to which they ratified.

This essay thus supports the evolutionary interpretation approach the Court applied in arriving at its decision. It preferred the ‘living document’ rather than the ‘original intention of the drafters’. In doing so, the court was left with the question of how to get from the original intent of generally providing for the freedom of association to the specific right to engage in collective bargaining. 

It built its jurisprudence from other landmark decisions such as in Wilson v United Kingdom and Associated Society of Locomotive Engineers and Firemen v United Kingdom. It also drew from international labour standards, provided in the ILO Conventions 98 and 151, the 1961 Charter of the Council of Europe and provisions in the EU Charter of Fundamental Rights of 2000. The above mentioned treaties provide that the right of collective bargaining, in principle, is an essential element of the ‘right to form and to join trade unions.  

The decision in Demir also mirrors Canada’s Supreme Court’s ruling in Health Services and Support-Facilities Subsector Bargaining Association versus British Columbia, where the Supreme Court departed from precedents it set in its previous decisions, and held that collective bargaining as provided under Art 2(d) of the Canadian Charter of Rights promoted dignity, equality, respect and called for the state to protect the personal autonomy of workers. The Supreme Court also applied several international treaties. 

With the decision in Demir, international case law reflect a position that the right to freedom of association includes the right to bargain collectively. (Insert footnote: 

  1. The substance and content of the right to collective bargaining. 

The Court in Demir wisely concluded that although states must remain free to develop their own mechanisms subject to Article 11 (1), the mechanisms must be consistent with ESC and ILO. Before, Article 11 was interpreted on its own. However, in this case, the Court applied the ILO and Council of Europe standards in ascertaining and establishing the content of the right to unionize as provided in Article 11. And so where Article 11 was insufficient, the Court filled the lacuna by borrowing from ILO and ESC jurisprudence. 

The court of Cassation held that the Turkish government’s restriction on civil service unions was prescribed by law. Indeed, it had a legitimate aim. However, the ECHR court regulated which restrictions could be accepted as necessary by referring to international labour standards, regional labour standards and the practice of other countries in industrial actions. It came to the conclusion that the restrictions placed on trade unions by the Turkish law were not proportionate and not permissible. Therefore, it not only interpreted other treaties as living instruments as well, but applied their scope and content to Article 11, as necessary to formulate the jurisprudence of the supervisory bodies.


The landmark decision in Demir confirms that the right to collective bargaining s an essential characteristic of the freedom of association guaranteed by article 11 ECHR and in a democratic society, this right can only be interfered where strictly necessary and where the said interference is justified. 


  • Case law

Associated Society of Locomotive Engineers and Firemen v United Kingdom [2007] ECHR 184

Engine Drivers’ Union v Sweden [1976] 1 EHRR 617

Health Services and Support-Facilities Subsector Bargaining Association versus British Columbia [2007] 2 SCR 391

National Union of Belgian Police v Belgium [1975] 1 EHRR 578

Wilson v United Kingdom [2002] ECHR 552 

  • Textbooks
  1. O’Higgins, ‘International Standards and British Labour Law’, (Blackwell 1986) Labour Law in Britain
  • Articles and Essays

De Vos, Marc, Work 4.0 and the Future of Labour Law (2018). Accessed on 9/11/2019 at 

  1. Online Journals 

Charalampos Stylogiannis, ‘The Protection of the Right to Strike under the ECHR’ (UCL Journal of Law and Jurisprudence, 2017), Volume 6, No.1

Jenks Wilfred C ‘The International Protection of Trade Union Freedom’ (1957) The American Journal of Comparative Law, Volume 9, Issue 1. Accessed 8th November 2019 at 

  1. D. Ewing, ‘The Right to Strike Revisited’, 

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, we will be able to prepare the legal document within the shortest time possible.