Der Tarifvertrag als exklusives Gut : Die rechtliche Zulässigkeit und Erstreikbarkeit von Differenzierungsklauseln

Collective agreements between trade unions and employers respectively employers' associations determine most of German working life. This is quite astonishing if you take into account that collective agreements are only binding for the parties to an individual contract if two requirements are met. Firstly, the employee must be a member of the trade union that concluded the collective agreement. Secondly, the employer or employers' association has to be a party to the collective agreement as well.Therefore, the basic thought behind collective bargaining is that the parties to a collective agreement negotiate only for their respective members. However, employers usually grant all their employees the advantages arising out of collective agreements, unwilling to give any incentive trade union membership. Doing this, employers rob trade unions of the possibility to heighten their attractiveness by advertising their collective agreements, and thus make it difficult for trade unions to recruit members.Outsiders, i.e. employees that do not belong to the trade union that concluded the collective agreement, enjoy the benefits of collective agreements on working conditions and collective wage agreements without having to take on the disadvantages that come with trade union membership, especially membership fees. This opportunity of free riding is one of the reasons why German trade unions - as well as trade unions in many other industrial nations - suffer from continuous loss of members. In Germany, less than one in three employees is a trade union member.To counter this dilemma, trade unions have developed different strategies. In the USA and in England, union security clauses comprising a closed shop used to be the predominant instrument to secure trade unions a sufficient amount of members. In Switzerland, trade unions may raise solidarity fees from outsiders and thus commercialise the usage of collective agreements (similar to US-American agency shop). In Germany, legal reasons forbid imitating these constructions. In my dissertation I reach the conclusion, however, that the parties may keep their collective agreements exclusive, whether in part or in total, and have only trade union members benefit from them (differentiation clauses [Differenzierungsklauseln]). In this respect, the opinion held by most courts and scholars must be contradicted.There are three different kinds of differentiation clauses. Simple differentiation clauses (einfache Differenzierungsklauseln) make trade union membership essential for the applicability of certain clauses in the collective agreement. Outsiders are excepted from the effects of those clauses. Nevertheless, in an individual contract employer and outsider may agree on simple differentiation clauses to apply to them, too.Tarifausschlussklauseln prevent the employer transferring certain terms of collective agreements on working conditions or collective wage agreements to contracts with outsiders. Abstandsklauseln determine that regarding certain benefits arising out of collective agreements there must always be a difference between trade union members and outsiders. Consequently, employers are free to grant outsiders the working conditions they like. At the same time, however, they are bound by the collective agreement to increase benefits for trade union members so that there remains a difference. Until a judgment by the Großer Senat (Great Senate) of the Bundesarbeitsgericht (Federal Industrial Tribunal) in 1967, these differentiation clauses were discussed by a broad public and occasionally put into practice.The Großer Senat then declared differentiation clauses to be illegal. From their point of view, differentiation clauses violate the outsiders' right to stay away from trade unions. The Großer Senat stated this negative freedom of association was founded in article 9, paragraph 3 Grundgesetz (Basic Law, German Constitution), in accordance with the majority of courts and scholars. Furthermore,