Gábor Mélypataki[1]: Civil service law and the right to strike in international context* (JURA, 2019/1., 367-377. o.)

1. Introduction

Right to strike is one of the most significant and most complex legal institutions of collective labour law. In this paper I am not going to deal with other questions, because I would like to make a more general, introductory analysis. The reason is that I am only at the beginning of the research of this topic and I would like to find the questions which may bring my research forward to further directions. The research project, which contains this study, deals with the labour relations of civil service. One of the subtopics of this research is the analysis of the right to strike. This is why some topics may seem to be scamped, as I would like to deal with them in other independent publications. So, in this paper I am going to focus on the general questions of the connection between the right to strike and civil service. Because of similar reasons, I will not investigate the relation of the Commissioner for Fundamental Rights to the right to strike, since it is more important than to be mentioned only in a sentence.

The exercise of strike is generally the employees' last mean when they really cannot see any other possibilities to enforce their will. The enforcement of the employees' rights extends primarily to working conditions, and most of all to wages. The survey made by Erzsébet Berki also proves this. She said that salary and other bonuses were at the centre of strike demands in 39% of the cases.[1]

Strike always means the end of a process. On the one hand, it is true from the point of view that the institutions of collective labour law are partly based on each other. Interest protecting organizations are formed by keeping the appropriate rules during exercising the right of association. They get different legitimacies such as the right for collective bargaining or the right to start a strike. The employees' interest protecting organization has several means besides strike to promote the employees' interests.[2] If these are not effective, the right to strike may occur as a last chance. Of course, the legislator has not determined the order of the rights of these interest protecting organizations, but it has been developed - because of practical reasons among others - like that the "hotshot" is left to be the last one. Another reason is peacefulness as a basic principle which determines the peaceful resolution of disputes. This also occurs in the regulation of strike, in the definition of prestrike period.

Applying strike also means the temporary disintegration of earlier work peace, so it can also be called as a work fighting action. The aggressive character of strike based on fighting, active behaviours is properly outlined during its story. So it is not accidental that we can start from full prohibition, then tolerated periods came, while it has become a totally tolerated tool.[3] Employees and interest protection organizations can freely organize a strike between the present legal systems. But some restrictions are necessary to the previous statement. Namely, if we look at it in a better way, not the same rules refer to all the workforces, not all workforces can strike by the same rules, and some of them cannot strike at all. The question is the reasons of differences. In my opinion some of the answers should be searched in the definition and the aim of strike. József Radnay looked at strike as a collective walkout with a definite goal.[4] He also adds to this essential definition that walkout should always be temporary, and sometimes only envisioning it is also enough. But it is important that walkout is the instrument of pressure. Because of these, strike is the tool of legal pressure, and the limits of its application are primarily given by the Fundamental Law and the Strike Act (Act 7/1989 on Strikes).[5] Importance of the latest one is given

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by two components. The first is that the right to strike is a constitutional fundamental right which also has its specific constitutional limits. On the other hand, proportionality occurs as an important aspect.

Proportionality can be interpreted in connection with the exercise and the restriction of the right to strike. One important element of strike is the temporary and mass cessation of work to force the other side for negotiation. If there is no work or production at a company due to a strike, the company has to face with a long-term lack of income what makes the company interested in solving the problems as fast as possible. This is more general primarily in the economic sector, and prevails mainly in market conditions. But the question is what servants working in civil service - and not in the economic sector - are entitled to under the title of strike, if they are entitled at all.

Public servants, even employees of publicly owned companies work under the direction and control of the state as an employer, either in a direct, or indirect way. Civil servants - following German terminology - perform their duties on a higher level than employment that means more obligations.[6] The present Hungarian reinterpretation of civil service is also closer to the public law perception of the earlier eras. Reinterpretation of the previous regulation may become necessary because of this reorientation as well. In the wake of the German terminology, the issue of loyalty and trust gets significant emphasis in the Hungarian conceptual set. The issue of loyalty and trust is important mainly in countries with closed carrier systems.[7] The required higher level of loyalty and trust gives not only a kind of higher entity for civil service relationships, but also means obligation which narrows the space. In narrower space there are usually no or very limited possibilities to enforce labour relations. So the question is obvious: What are the real effects of the exercise of collective labour law of public service employees on the essence of civil service relationship? To analyse this question it is worth to think about the hypothesis of Dorothea Schafer, a German trade-union chief: "The right to strike does not stop loyalty."[8] Here we can turn back to data cited previously according to which the major reason of strikes can be associated with bonuses and wages. If we really recognize that loyalty has a stressed role in civil service relations, than we have to understand that this loyalty has a completely different direction than the issues of wages. If a servant is not satisfied with his salary and he also tells this, it does not mean the violation of his sworn loyalty. Salary or working condition issues are in connection with his own potential, and he starts a strike to improve it. But taking part in a strike does not mean breaking loyalty for the state. Rules of closed systems usually do not recognize - or do not want to recognize - that civil service relations create not only public law relation system, but certain private law demands as well.[9] The officer would like enforce his own personal rights. Essentially, we can talk about the conflict of public and personal interests in which the enforcement of personal interests should be allowed, but in a way that does not hurt public interests. Due to these, in my opinion strike can be allowed with appropriate restrictions.[10]

To fulfil the investigations mentioned above, it is necessary to get acquainted with the general character of strike, for which international approach is necessary. In the frames of international aspects, it is necessary to study the regulations of the EU, the ILO, the European Social Charter and the exercise of different countries as well.

2. General character of the right to strike in the mirror of international law

On the level of the European Union, one of the practical aspects connecting to the exercise of the right to strike set in the 27[th] point of the preamble of Rome II. According to the text of this Regulation the definition of strike and walkout differs by each member state, so internal national rules of the member states should be applied when judging strikes. The general principle of the ordinance in order to protect the employees' and employers' rights and obligations is that the law of the country in which the organized action happened should be applied in case of a strike.[11] Article 9 of the ordinance, which is about the damage caused by the employees' and employers' organized actions, also connects to this general principle.

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In this case the affected country's law is applied or a collective labour action happens. The European Union does not deal with the regulation of collective labour law, and so especially the regulation of the right to strike based on the Treaty on Functioning of the European Union (TF EU). These are left for the member states. However, there are some cases, when the judgement of collective labour law issues - and so the exercise of the right to strike - requires a higher level than the national one. Hantel also emphasizes that the judgement of cases in which strike and any other means of work fight are against employers from different EU states is under the scope of the EU. This is originated from the basic freedoms of the Union.[12] Namely, strike can be considered as the point of impact of the freedom for work and the free flow of capital. Primarily, I mean the right for work under the employees' freedom.

On EU level, strike has been approached from such a negative aspect that it has been considered to be a law limiting rule.[13] We can see that this point of view has changed somewhat if we review the articles of the Charter of Fundamental Rights of the European Union (CFR). Articles 27-28 deal with collective labour law issues. The approach is interesting that these rights can be found in the "Solidarity" chapter of CFR. Article 27 highlights the employees' right for information and consultation, while Article 28 emphasizes social dialogue and the right to strike. From this aspect, strike is a positive right. CFR highlights that employees have the right to act together - including strike - to protect their interests in case of a conflict of interests. C-438/05 decision by the Court of Justice of the European Union (Viking case) was necessary for the development of this aspect. In its decision the Court of Justice (Curia) emphasized that these collective actions are limiting on the basis of Article 43 of the contract creating the European Economy Community. These restrictions can generally be justifiable by such arguments based on public interests as the protection of employees, if it is appropriate to reach a certain goal.[14] Here we can talk about a necessary and acceptable restriction.

The EU's legal rules about strike give half of the international interpretation; the other part is the fourth point of Article 6 of the European Social Charter. Strike is interpreted as part of the right for collective bargaining by the Charter. Strike is considered to be some kind of instrument of action which assures the fulfilment of collective agreements having been concluded. However, two things must be added to this. On the one hand, as Article 5 of the Charter makes a restriction in case of police and armed forces, it is worth considering the restrictions when exercising social dialogue and the right to strike. On the other hand, during the interpretation of these restrictions the related instructions of the International Labour Organization (ILO) should also be considered, as they are the basis of the Charter's instructions. The ILO's conventions dealing with labour relations have never referred to the exercise of the right to strike textually.[15] This situation can be illustrated mostly by the essence of a decision made by the Supreme Court of Canada[16]: "In legal texts, constitutionally accepted guarantees of the right to strike, but which are especially related to the freedom of association, are drawn up."[17] This can be also found when interpreting the ILO conventions, since the freedom of association is the right of coalition in a defined and protected explicit way, and the protection of the right to strike is derived from this implicitly.

This interpretation has been expanded by the ILO in the Final Report published in 2015 in connection with the ILO's convention No 87 (CO87).[18] The point of view about employees cited in the Final Report has not changed. So, the right to strike has been interpreted as a fundamental right which can speed up processes between the parties, since employees usually do not have enough time to wait for the end of long negotiations (because of livelihood causes), and sometimes immediate intervention is necessary. The employers' representative says that the issue is not solved and it will not be on a long-term, whatever, he acknowledges that even modifying the convention might be necessary in order to protect employees.

But the general polemics mentioned above has not brought breakthrough results yet. In CO87, the right to strike is still defined implicitly. But the fact that the right to strike could not be found in the text of the convention does not mean that ILO has not dealt with the

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Table 1: Summarizing chart about the regulations of international documents on the right to strike[21]

definition and application of strike. The basic principles of exercising the right to strike were determined as early as 1952 by the ILO's Committee on Freedom of Association (CFA). This recognition came from the fact that strike could be a legal mean for employees and advocacy bodies to protect their economic and social interests. The CFA also recognized that strike was not only a social action, but

- also made it clear that this right was an actual legitimacy for employees and their organizations (trade unions, alliances and trade-union alliances);

- reduced the number of employee categories that can be debarred from exercising this right or can exercise it in a limited way;

- connected the exercise of the right to strike with the aim of the promotion, and protected economic and social interests;

- recognized that exercising the right to strike cannot cause punishment or prejudicial legal consequences.[19]

Similarly to the ILO, some legal resources of the Council of Europe define the right to strike implicitly. The articles of the European Social Charter have been reviewed, in which this right is defined also in a special explicit way. However, the European Convention on Human Rights (ECHR) does not draw it up so frankly. Article 11 of ECHR defines the freedom of assembly and association. According to this article, everybody has the right for the freedom of peaceful assembly and the freedom of cooperation with others. Restriction of this freedom is possible primarily in the case of the police and armed forces. But the explicitly defined right might be more powerful than the right to strike drawn up in the European Social Charter, since contracting parties only acknowledge, but not warrant this right in the Charter.[20]

However, judging strike is not only the competence of the organizations mentioned above. Article 22 of the International Covenant on Civil and Political Rights (ICCPR) of the United Nations (UN) defines the freedom for association which also contains the right to strike implicitly. Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) acknowledges the right to strike being in accordance with a certain country's laws. (Table 1)

3. National determination of strike rules

It also reveals from the analysis of international rules that even if a document declares the right to strike, its content is not defined. Most documents refer to strike as a mean of collective legal practice. This solution is well reflected in Rome II and the UN's ICESCR. The latter says that the exercise of strike should harmonize with a certain country's law and order. To continue the analysis it is necessary to have a look at the national solutions as well. In Hungarian law, the definition of strike can be built up by straggling elements of the rule.[22] The definition by József Radnay mentioned above also reflects this. But for our further investigations it would be worth to make a more detailed definition: "Strike is a group of employees planned cessation of work without the intention of terminating the employment, and the aim of which is promoting the employees' legal, economic and social interests."[23] Similarly to the Hungarian rules, the legal institution does not have a definition in the Belgian law as well.[24] The central element is the cessation of work, by which the employees' aim is to put pressure on the employer or a third person. Strike can

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be started towards not only the employer, but a third person as well. The opposing party is not defined in the Hungarian law, but this does not mean that strike cannot be started against a third person. There have been more examples in Hungary when the addressee of strike was not the employer. The reason could be that employees did not know who the actual employer was, but it could be also possible in case of civil servants that strike is against the controller.[25] Similarly to these, partial or total cessation of work is also considered to be the essence of strike by the Slovakian regulation.[26] The specification of parties is set quite markedly in the Bulgarian regulation, since in the definition formed and been presented in the previously mentioned summary of the European Trade Union Institute (ETUI) presents strike as a conflict between employers and employees, and which conflict is in association with labour relations, social security and living issues. The Bulgarian legislator also adds that the right to strike is not limited to the trade unions, but other organised groups of employees can use it.[27] According to the Romanian law we can talk about the employees' conflict implemented by cessation of work originating from their collective free will.[28]

It seems from the definition attempts of different countries that different elements are considered to be important in connection with the legal institutions. But this does not mean that the elements of strike not mentioned in the definition would not have important role. These elements always emerge from the whole regulation - not necessarily as a definition element, but as a principle. It can also be seen in the definitions of the studied countries that it is considered to be a collective labour law tool which has the task to implement the employees' common personal interests. Partial or total cessation of work is the mean of this. There are certain groups of employees on one side and generally the employer is on the other side, but not in all cases. However, it is not in the definition of the right to strike, but it can be clearly read from the legal context that strike primarily refers to the employees of the economic sector. In case of practicing strike, volunteering and free will occur as important basic principles.[29]

But some groups of employees are completely excluded from exercising this right or their rights are limited. On the one hand, these limitations adjust to the guidelines defined by the ILO and the Council of Europe, primarily excluding police and armed forces from the range of eligibles. But legal regulations differ in every country and different employee layers will be debarred from exercising this kind of advocacy. The range of employees excluded or limited from the right to strike is also different in each country, because it fits to the countries' legal conception and presents different emphases in regulation. Despite the differences, the same conceptions can be discovered in the legal restriction. Deprived and limited workers are those who work in civil service. Some groups have public power, others do not. Primarily not the practice of public power is the issue in these cases, but their binding to the state. We usually talk about public service providers. This problem was raised in judicial petitions made by teachers working as officers in Germany. According to them, there is a difference between civil servants and public service employees.

In the followings, rules referring to special civil servants will be analyzed according to international legal rules at first, and then on the basis of Hungarian and national rights.

4. Civil servants' right to strike in international and different national laws

International rules which help to understand the right to strike have already been mentioned in the previous part of this study. But it has not been mentioned that the exercise of collective labour law legal institutions has limits. There are such limits in ILO CO87 and in the European Social Charter. According to these international documents, the exercise of rights can be excluded or limited in case of the members of the police and armed forces. It is not always completely clear what is included in this concept. The resolution of the Commissioner for Fundamental Rights about trade union and collective labour law at civil national security organizations is a good example in Hungarian law.[30] Most generally the protection of the state

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and its citizens is the cause of limiting these rights of the armed forces and police.

Nevertheless, it is necessary to refer to the ILO CO151 and ILO CO154 to have the whole picture. These two conventions deal especially with labour relations of civil servants and reduce the weight of those limiting rules which have been defined by international norms. Based on the two cited conventions, we cannot talk about general legal restriction, or at least the aim was not this. In connection with public sector CO154 allows only that the nation-state should create special rules for the employees of the public sector. But it does not contain that the employees of the public sector should exercise only the right of consultation (collective negotiation).[31] In comparison, Hungarian and national laws judge this condition quite strictly. The Constitutional Court explained in its decision 673/B/1990. AB that the right to strike is not a subjective right therefore it can be limited referring to another constitutional fundamental right. The right to strike of civil servants or even the armed forces or workers of justice service is included in this group.

The practice of the European Social Charter should be highlighted in connection with civil servants. Now we will study shortly the cases of Baykara vs. Turkey and Enerji Yapi-Yol Sen vs. Turkey[32] and then we will refer their essence to the Hungarian rules.

In case of Baykara vs. Turkey the Turkish Supreme Court terminated the collective contract with the trade union of public service employees. The termination happened by retroactive effect referring to a Supreme Court decision made in 1995. Affected by this case, the European Court of Human Rights (ECHR) in Strasbourg supervised its own earlier viewpoint and acknowledged collective labour law practice as a fundamental right. This decision opened the way for the case of Enerji Yapi-Yol Sen vs. Turkey when the Turkish Prime Ministry's department responsible for public sector prohibited for the employees of public sector to participate in that one-day strike in which the concerned trade union had also expressed its participation. More leaders of the trade union participated in the strike, for which they got disciplinary punishment. This decision and the description of the prohibition were appealed court. The ECHR made its decision in 2009. It said that the right to strike was not an absolute right so it could be limited. But the issue of proportionality is an important viewpoint here as well. Judging by the court, the decision prohibiting strike had been too restrictive. However, these do not mean that the right to strike could not been limited legally, but not in general. Of course, some groups of officers can be pulled out, but strike cannot be banned generally with respect to the whole layer of public service employees. As Edit Kajtár says when analyzing these cases, not the existence of strike in public sector is the issue, but its limitations.[33]

It is clear that issues referring to the right to strike - like constitutional rights - usually depend on proportionality. It also played an important role in the case of Satilmis and Others vs. Turkey. In this case, customs officials had had slowing strikes more times. This meant loss of income for the state who wanted to recover it from customs officials based on the judgement of the Turkish Court. The ECHR stated that in this case the trade union had decided to start a strike, it had informed the state about it and the customs officials had exercised their rights related to peaceful assembly and enforcement of interests. According to these the state's behaviour was illegal, since it could not prove that the officials would have had any other means to express their opinions peacefully.

It can be concluded that the prohibition of right to strike affecting the whole public sector is not feasible in the mirror of international law's case law. This was recognized by the Belgian legislator as well who did not exclude any segments of the public sector among limitations. However, he definitely mentioned in the regulation that public services should be provided, even in a limited way. The issue of proportionality comes to the fore here as well, since the exercise of the right to strike should be proportionate: it cannot limit others fundamental rights, neither by the aim to be achieved, nor unnecessarily.[34] The Slovakian solution defines it more concretely than the Belgian rules. Differently from the Belgian regulation, it does not talk about the possibilities of limitation only in general, but referring to employee groups. The Slovakian regulation shows us that when we

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talk about the public sector's right to strike, it is about narrowing and excluding the personal scope of strike law. It is not a special case. Most Central- and East-European countries follow this practice. Based on these, the right to strike is limited by the Slovakian law in the cases of workers in nuclear power plants, oil rigs and oil pipelines, if life and health become endangered. Moreover, leading civil servants' right to strike is also limited.

As we can see, public service means two different things on national level in connection with strike and it occurs as two different limitation forms. One of these limitation forms is providing public services. Not all the regulations define clearly which service level should be provided to be sufficient. Primarily, certain services are assigned by the regulations. The Belgian regulation mentioned above marks a relatively narrow range. In comparison, the Bulgarian regulation ranks television service here as well. The other interpretation of civil service is - what has been already mentioned in this paper more times - the range of public service employees. Similarly to the Bulgarian regulation, there is a restriction for civil servants in the Hungarian and Slovakian rules as well. In Bulgaria, civil servants can strike only figuratively.[35] Walkout is not part of strikes. This solution is similar to the case, when health care workers dressed in black in Hungary. By comparison, the regulation of civil servants is much stricter in Romania. Even symbolic strike is prohibited for soldiers, army's official staff and public officers.[36]

It can be seen from these examples that how wide the scale of the right to strike and its limitations is. To understand Hungarian rules more precisely, it is worth comparing civil servants' possibilities with legal rules of strike in the surrounding EU countries.

As we can see in Table 2, rules referring to civil servants and public service employees are quite similar in Central-East-Europe. This similarity can be originated from their common political history and their similar future.[39] However, despite common roots and perspectives, numerous differences can be found. Such difference is that special rules are not included in a certain act or other laws in the national regulation, but in the agreement between trade unions and the ministry having been responsible for employing at that time. In the followings, I would like to present shortly the most important points of this agreement, summarizing the lessons of the previous part.

Table 2: Strike regulations of civil servants and public service employees in certain Central-East-European countries[38]

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5. Civil servants' and public service employees' right to strike in Hungary

As it has been already mentioned more times in this study, the 3§ (2) paragraph of the Hungarian strike act says:

"There is no place for strike in case of judicial authorities, Hungarian Defence Forces, security and police authorities and the civilian national security services. In case of state administrative bodies, the right to strike can be exercised following particular rules fixed in the agreement between the Government and certain trade unions, but professionals working for the National Tax and Customs Administration are not entitled to exercise the right to strike."

This means two things. The first one is that the ratio of other collective interest enforcing actions - such as demonstrations, open letters, and signature collections - is higher in these sectors.[40] The other one is that the limitation of strike rules refers to only the narrowly defined civil service and public service. But there are several personal groups in the narrowly defined civil service who can strike besides some certain rules. Employers working for companies providing public services may belong to them. In this case, providing "just sufficient" services is the only important obstacle of strike. "Just sufficient service" is not a convertible number, but it should be defined by each service type differently.

Public services are usually provided by companies responsible for the public service of work. Some of these companies are owned by the state or a municipal council in majority or completely. In this case employees working for employers in public ownership belong to the range of civil servants taken in a wider sense. Another significant type of public services is provided by civil servants. The common features of employees working for employers in public ownership and civil servants are that mostly the state is their employer and a service is typically provided for a third person. Since this mostly means providing public services, a defined level of these services should also be provided in the case of strike. The two kinds of interpretations of civil service having been explained meet at this point. One interpretation is the limitation of the right of functionalists related to the state; the other is assuring continuous satisfaction of public necessities. Personal limitation just originates from that the continuous supply of public necessities should be provided on a certain level. This is such a personal limitation which is defined indirectly against the employees of public service companies. This limitation makes them similar with civil servants and public servants from the aspect of employment. So, from the point of view of the right to strike, they become a part of wider range civil service. But it must be added that both limitations of exercising the right to strike will be introduced, but it will be explained through the conditions of fulfilling "just sufficient services" at first, and then the agreement referring to civil servants.

5.1. "Sufficient service"

Accordingly, walkout affects citizens as external third persons. It is completely clear from the legislator's logic that the argument between the employer and the employee cannot cause disproportionate harm for the customer. On the other hand, the aspect should be considered that it would be inequitable against the employer if the employees want to put pressure on him by stopping providing sufficient services for the citizens. So the demand can be understood, but implementation is not so simple. On the one hand, it is impossible to define a general measure in this case, since the parameters of public transport and water supply are different. So law does not define a measure, but let it be defined by different sector rules. There are some sectors where these measures have been defined, e.g. 66% of service is the sufficient level in public transport. The more complicated case is when the parties of a sector have not been able to or have not wanted to agree. If there are no defined measures, the parties should agree during the negotiations preceding strike. But thinking of it, it does not seem to be lifelike that the parties would be able to compromise during the prestrike period. It is more common that parties turn to the administrative and labour court to make it define measures and conditions of sufficient service. The resolution No 10/2013 by the Hun-

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garian Labour College cited before explains that the court can make decision about the level and conditions of sufficient services only by taking a decision about accepting one party's proposal after investigating the proposals of both parties. The court decides on the issue in a non-contentious proceeding. Because of the short, five-days deadline of the proceeding it can be acceptable that - without an agreement - the parties should make a statement in front of the court about the level and conditions of sufficient services. The statement should be serious, professionally supported and fit to labour law principles (such as good faith, honesty, mutual co-operation obligation, purposeful exercise of rights). Although legally both parties can ask for specifying the level and conditions of sufficient service, since - without an agreement - the final court decision is the legal criterion of performing the planned strike, it is obvious that the party interested in having the strike should apply for a decision. So it is not enough to apply for court decision only in this range, but the application should completely fit to the requirements of applications.

A further issue is whether strike should be classified legal or illegal in lack of sufficient services. It is a general opinion that the definition of sufficient service can be found in §4. These all mean that - if we interpret the law strictly -only not having an agreement about the level of sufficient service does not make the originally legal strike illegal. The reason for this is the own reference system of the law.

If parties may succeed in agreeing about the sufficient service then what effects may it have on using the services? Kiss and Berke bring up the issue that if parties succeed in agreeing which turns to be insufficient in practice, then it is possible for a third person to have a demand.

Defining sufficient services is not simple anyway. Essentially it is such a specific issue in which it is not sure that the court has the appropriate tools for judging. Anywhere the level is defined, the Curia also admits that strike is such a fundamental right which cannot be made empty and latterly provided complete service cannot be required to be the criterion of sufficient service. However, strike usually stops in this phase, mainly if we mention that there are such jobs where interpreting sufficient service is difficult. This means problems primarily in health care, education and social fields.

5.2. Characteristic features of strike agreement

Limiting and prohibiting the right to strike in the public sector is not a new thing. The possibility of this is derivable from the ILO and other European socio-political agreements as well. In some countries this regulation is less strict. In Hungary, there are differences in exercising law between the different segments of civil service. In case of public service employees providing sufficient services is the limitation. The situation of civil servants is much more controlled. Civil servants can strike only in that way and level which is allowed by the agreement between the Government and the trade unions. But this fact brings up more questions, especially as quite a small group of officers is civil servant because of legal changes. Interpreting the text of strike agreement this should not cause a problem, since the text sets learly that the agreement refers to the staff of central and territorial, or settlement and territorial authorities. But it does not stop uncertainty, because the agreement uses the term of civil servant organically. Uncertainty is caused by terminological changes. A further narrowing fact is that it refers to only those trade unions which have signed the agreement. The question is whether this can limit the role of newly formed trade unions or not. In my opinion, yes it can. To initiate a strike, the officer of the trade union should prove that he has the authorization of the majority of civil servants to start the strike.

The main goal of strike is to promote economic and social interests of civil servants. This goal should also be considered in a solidarity strike, so they cannot be solidary with the strike demands of the economic sector.

A further interesting addition is that the conciliatory period before strike has two levels. The first is the local-official level. The second is the competent ministry, and in case of local management authorities conciliation on municipal level does not have a result. After

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this there is a chance for real labour action, of course besides providing sufficient services which primarily means managing citizens' urgent problems.

As we can see, restrictions affecting civil servants are significant; moreover they are outdated and barely consistent with present terminology. Because legislation - in my opinion - has outsourced a significant part of officer layers from under the scope of the agreement[41] by giving new status with a completely new name for some civil servants. That is what actually tightens significantly the Hungarian legal regulation, even in comparison with other Central-European solutions. Court interpretation of law will also be necessary to define the alignment points. But at this time, none of the trade unions have undertaken a test case about whether the definition of civil servants in the strike agreement should be interpreted broadly.

The form and content of the regulation bring up several similar questions which cannot be explained in these frames. But it is a fact that Hungarian civil service strike is under-regulated and proper guarantees are missing.

6. Summary

The right to strike can be evaluated as a part of the right to work, moreover, as an independent fundamental right. The regulation of strike has gone through a lot of things. All the stations of the development of collective labour law can be indicated by the development of rules. Quite long time has had to pass until it has become an approved right by the legislator. The emancipation of workpeople and labour movement was also necessary for this. This is, at least, partly elimination of the aspect that has formed the invisible casts in the society based on jobs. This was the change that made strike a general right for employees working in the economic sector. Then the demand for defining the personal scope of strike in a wider range came up. Some results of this intention occurred in the international regulation at first, primarily as a reference, then more openly. Affected by these, the right for work fighting has become available for some groups of civil servants. However, general principles always let national regulation answer the question. Brief examination of certain European countries shortly was a good example for this. We could also see that certain nation-state ideas referring to the public sector are not so far from each other, nor the Hungarian. Of course, detailed analyses are necessary as well which I would like to carry out in another study. The aim of this present study is to be a general introduction as a first step of a research. ■

NOTES

* "The work was created in commission of the National University of Public Service under the priority project KÖFOP-2.1.2-VEKOP-15-2016-00001 titled "Public Service Development Establishing Good Governance" in (the) István Egyed Postdoctoral Program.

[1] Berki Erzsébet: Sztrájk [Strike] 2.0, Dúra Stúdió, Budapest 2016. 65. o.

[2] See more: Kenderes György: A szakszervezeti jogok elemző bemutatása magyar és nemzetközi vonatkozásban [Analyzing trade union rights in Hungarian and international] Miskolci Jogi Szemle [Miskolc Law Rewiev], 2017/2. ksz, 256-266.; Vallasek Magdolna: A kollektív szerződés intézménye a román munkajogban [Collective bargaining in the romanian law], Miskolci Jogi Szemle [Miskolc Law Rewiev], 2017/2. ksz., 653-62; Horváth István: Munkaügyi kapcsolatok - szabályozási kérdőjelek egykor és manapság [Labor relation - questions of the regulation than and now], Miskolci Jogi Szemle [Miskolc Law Rewiev], 2017/2. ksz, 202-212. o.

[3] Ajtay-Horváth Viola: Quo vadis sztrájkjog? - Gondolatok a még elégséges szolgáltatásról, DIEIP, 2013/2, 1.

[4] Radnay József: Munkajog [Labour Law], Szent István Társulat, Budapest 2000. 240. o.

[5] Kajtár Edit - KUn Attila : Right to Strike: Hungary, in: Bernd Waas (ed.): The right to strike, Wolters Kluwer, Netherlands 2014. 285. o.

[6] Részletesebben lásd: Bernd Müller: Arbeitsrecht im Öffentlichem Dienst, Verlag Vahlen, München, 1988, 7-9.

[7] Itt azért érdemes kiemelni, hogy a nyílt rendszerekben is fontos értékek a lojalitás és a bizalom, de nem feltétlenül olyan szinten, mint a német és francia mintát követő karrierrendszerekben.

[8] Tobias Armbrüster: Streikrecht für Beamte vor Gericht - "Die Loyalität wird mit dem Streikrecht nicht aufgekündigt", http://www.deutschlandfunk.de/streikrecht-fuer-beamtevor-gericht-die-loyalitaet-wird-mit.694.de.html?dram:article_id=408504, 2018. IV.11. The sentence cited above is related to an assertion of a second hearing before the Bundesverfassungsgericht on 17 January 2018 concerning the right to strike of teachers in civil service status. I have not found any more information about the decision yet.

[9] K.M.C. v. Hungary

[10] The Bundesverfassungsgericht in its judgment of 12 June 2018, took a different view. I would like to publish a later study on this analysis. For more information on the constitutional law of the strike in Hungarian: Rácz Zoltán: A sztrájkjog megítélése az Alaptörvény tükrében [The role of the strike in the mirror of the Fundamental Law] , Publicationes Universitatis Miskolcinensis Sectio Juridica et Politica, Tomus XXX/2., 2012, 569-575. o.

[11] Martin Henssler: Arbeitsrecht der Europäisschen Union, Martin Henssler (Hrsg.) - Axel Braun (Hrsg.): Arbeitsrecht in Europa, OVS Verlag, Köln 102. o.

- 376/377 -

[12] Peter Hantel: Europäisches Arbeitsrecht, Springer Verlag, Berlin-Heidelberg, 2016, 283.

[13] José María Miranda Boto: The competence of the EU concerning the right to strike, Hungarian Labour Law 2016/2. 5. o.

[14] Bankó Zoltán - Berke Gyula - Kiss György: Kommentár a munka törvénykönyvéhez [Commentary on the Labor Code], Wolters Kluwer, Budapest 2017. 37. o.

[15] Bernard Gernigon - Alberto Odero - Horacio Guido: ILO principles concerning the right to strike, ILO, Genova 2000, http://ilo.org/wcmsp5/groups/public/@ed_norm/@normes/documents/publication/wcms_087987.pdf, 2018. IV. 11., 8.

[16] Urwana Coiquad - Michel Coutu: Streikrecht hat Verfassungsrang, AuR, 2018/4. 194-196. o.

[17] Klaus Lörcher: Der Arbeitskampf im internationalen Kontext, 10. HBS Forum, 3.5.2015 Berlin (slideshow presentation)

[18] Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level (Geneva, 23-25 February 2015), http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_349069.pdf, 2018. IV. 11.

[19] Grenigon - Odero - Guido: i.m. 11. o.

[20] Kajtár Edit: Magyar sztrájkjog a nemzetközi és az európai szabályozás fényében, PhD értekezés, Pécs 2011. 64. o.

[21] Lörcher: i.m. 5. o.

[22] Kajtár - Kun: i.m. 285. o.

[23] Base of the definition: Definíció alapja: Kajtár - Kun: i.m. 285. o.

[24] Wiebke Warneck: Streikregeln in der EU 27 und darüber hinaus - Ein vergleichender Überblick, ETUI-REHS aisbl, Brüssel, 2008, 14.; Prugberger Tamás - Nádas György: Európai és magyar összehasonlító kollektív munkajog, Wolters Kluwer, Budapest 2015. 171. o.

[25] Berki: i.m. 21. o.

[26] Fabian Fridrich - Markus Lippmann - Birgit Müller -Dirk Wahmuth: BayME - Schriftenreihe Internationales Arbeitsrecht Band. 02, BayME Bayerischer Unternehmensverband Metall und Elektro e. v., München2004. 41. o.; Jana Markechová - Katarina Kimanová: Arbeitsrecht in Slowakei, Martin Henssler (Hrsg.) - Axel Braun (Hrsg.): Arbeitsrecht in Europa, OVS Verlag, Köln 1380-1381. o.

[27] Warneck: i.m. 16.; Radostina Ivanova: Arbeitsrecht in Bulgarien, JOR, 2017/2. 282. o.

[28] Warneck: i.m. 58.; Vallasek Magdolna Márta: Gondolatok a román munkatörvénykönyv módosítási tervezetéről [Thoughts on the Draft Amendment to the Romanian Labor Code], Romániai Magyar Jogtudományi Közlöny [Hungarian Journal of Jurisprudence in Romania] 2005/1, 69.; Ute R. GOTHA: Arbeitsrecht in Rumänien, Martin Henssler (Hrsg.) - Axel Braun (Hrsg.): Arbeitsrecht in Europa, OVS Verlag, Köln 11721173. o.

[29] Florian Benz - Jörg Böcker - Alexander Dubon - Thomas Prinz - Dirk WasmuthT: BayME -Schriftenreihe Internationales Arbeitsrecht Band 03, BayME Bayerischer Unternehmensverband Metall und Elektro e.V., 31.

[30] Case AJB-2047/2016.

[31] Dr. Pajcsicsné dr. Csóré Erika: A rendvédelmi dolgozók sztrájkhoz való joga, In: https://www.ajbh.hu/docu-ments/10180/125038/Dr+Pajcsicsn%C3%A9+dr+Cs%C3%B3r%C3%A9+Erika+-+A+rendv%C3%A9delmi+dolgoz%C3%B-3k+sztr%C3%A1jkhoz+val%C3%B3+joga/34a94f95-339a-4a9c-ad43-afa801355fdd?version=1.2&download=true, 2018. IV. 12., 2.

[32] See mor from the turkish labour law: Tankut Centel: Introduction to Turkish Labour Law, Springer International AG

[33] Kajtár: i.m. 70. o.

[34] Warneck: i.m. 15. o.

[35] Warneck: i.m. 16. o.; Ivanova: i.m. 282. o.

[36] Fabian Fridrich - Markus Lippmann - Birgit Müller -Dirk Wahmut: BayME - Schriftenreihe Internationales Arbeitsrecht Band. 02...41.; Jana Markechová - Katarina Kimanová: i.m. 1380-1381. o.

[37] Niels von Redecker: Das polnische Beamtenrecht, Peter Lang Frankfurt am Main 2003

[38] The table is the result of own data collection. It served as a source for the table: WARNECK: i.m. és Martin HENSSLER (Hrsg.) - Axel Braun (Hrsg.): Arbeitsrecht in Europa, OVS Verlag, Köln i.m.

[39] Klaus Roth: Arbeit im Sozialismus - Arbeit im Postsozialismus - Einführung, Klaus Ruth (Hg.): Arbeit im Sozialismus - Arbeit im Postsozialismus Entdeckung zum Arbeitsleben im östlichen Europa, Lit Verlag, Münster 2004. 13-16. o.

[40] Berki: i.m. 10.

[41] I can agree with the aspect, that what I represent is debatable, but if we look at not only the changes in terminology, but also the change in the direction of legislation, outsourcing is clear.